THE RIGHT OF PRIVATE DEFENCE IN CRIMINAL JURISPRUDANCE

Gaurav Thapliyal

Int. B.A.LL.B(Hons.) (Specialization in energy laws)

Roll No. R450212038

2012-2017

Submitted under the guidance of: Dr. Mamta Rana

Assistant Professor

This dissertation synopsis is submitted in partial fulfilment of the degree of B.A.LL.B

(Hons.)

COLLEGE OF LEGAL STUDIES

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

DEHRADUN

2016
 Statement of the Problem

Right to private defence is an ages old concept. The concept was recognised even before the
inception of concept of law and order. Private defence is more of a natural instinct than a
right. It is recognised by both law and equity. The right of self-defence is one which has come
down from the ancient law-givers. Manu enjoined to resort to arms in self-defence 1 and the
root of this concept may be found even in Anglo-American jurisprudence.2

The present date legal regime recognises this important right of a person to protect himself
and his property from any harm. It provides an individual the power and protection to inflict
injury to another individual or a group of individuals to protect ones own interest. This
should not be misunderstood with the power of a state to punish an individual for the wrong
done by him. Thus private defence cant be in the nature of punishment and the power
granted and exercised by the states are different from the ones of an individual. The legal
regime concerning to private-defence is thus an extension of the laws of necessity, the test for
a reasonable exercise of self-defence being a clear and present danger, the imminence of
harm to either person or property, and the consequent necessity to protect the self or ones
property. This is in consonance with a basic aim of criminal law which is to safeguard
conduct that is without fault from condemnation as criminal.3

There exists no scope to question the necessity and legitimacy of the right of private-defence.
But there are certain contestable issues that this area of law throws up. Some of them are the
quantum of force to be used in exercise of private defence, the approach to determine
apprehension of danger and immediate danger, the time duration to determine the start and
end of private defence, consequences of excessive force in private defence etc.

1 Manu, Ch. VIII, Verses 348-9.

2 Jack Lowery, A Statutory study of self-defence and defence of others as an

excuse for homicide, University of Florida Law Review, Vol. V, (1952), p. 58.

3 Paul Robinson, A Functional Analysis of Criminal Law, Northwestern Unversity

Law Review, Vol. 88, No. 3, (1994), p. 857 at 858.
 Identification of the Issues

1. What is the measure to determine the reasonableness and necessity of the force used
in private defence?
2. What is the role played by the judiciary in the evolution of law relating to right to
private defence?
3. What is the legal position of the concept in the contemporary world?
4. Whether the judicial interpretation has successfully catered the needs of the society
and the evolution of the law?

Scope of the Research

"It is both good law and good sense that a man who is attacked may defend himself. It is both
good law and good sense that he may do, but only do, what is reasonably necessary." 4 Private
defence is thus a part of the natural rights conferred on the members of the society. But the
measure of exercise of this right is determined by the law. It depends on various factors like
reasonableness of force used, apprehension of harm etc. Thus there exists some interface
between natural rights and legal rights while dealing with the topic of private defence.

In India, the right of private defence is the right to defend the person or property of himself or
of any other person against an act of another, which if the private defence is not pleaded
would have amounted to crime.5 The principle on which the understanding private defence is
based is common but the way in which law pertaining to private defence responds is different
in different countries. During the course of discourse the dissertation would aim to analyse
the legal position in the other contemporary world. Thus an example of the both the common

4 Palmer v R, [1971] AC 814

5 R.D. Yadav, Law of Crime and Self-Defence (New Delhi, 1993), p. 18.
law and civil countries will be taken. This approach has been adopted to get an holistic view
of the legal systems in world.

Research Methodology

The research methodology used for this dissertation would be comparative analysis of various
primary and secondary resources. Ill also adhere to doctrinal overview of case laws.

Thus this dissertation will give a holistic overview of the concept while focusing on some
much-debated aspects that have been mentioned earlier.

Hypothesis

The legislation pertaining to private defence is not well defined in India.

Probable Outcome

The aim of this dissertation is to clarify the present status of the right of private defence and
develop proper understanding of the concept by covering the aspects. There would be an
attempt to understand the loopholes in the legal system and appreciate its achievements as
well. The comparative study of the legal systems of the other nations would help in learning
from their approach and taking effective measures to overcome the shortcomings.

Review of Literature

1. Alka Dhaiya, Right of private defence: A preventive right or a punitive right

published by GJRA - GLOBAL JOURNAL FOR RESEARCH ANALYSIS According
to the author the right of private defance is the first duty of the man to help himself. The right
is vested with every citizen of a civilized society the right of private defence where
practically one can take law in his own hand to defend his own person and property and that
of others It depends solely on the wrongful or apparently wrongful character of the act
attempted and if the apprehension is real and reasonable, it makes no difference that it is
mistaken. The right of private defence legally accords to the individuals the right to take
reasonably necessary measures to protect themselves under special circumstances. The
inconsistency between the judicial interpretation and the intention of the Code framers is
exemplified in the interpretation of reasonable apprehension under Sections 100 and 102.
Evidently, the local courts have adopted a strict objective approach in determining reasonable
apprehension, ignoring its inherent ambiguity. The supreme court of India laid down
guidelines for right of private defence for citizen .it observed that a person cannot be
expected to act in an cowardly manner when confronted with an imminent danger i.e. threat
of life or property and has got every right to kill the aggressor in self defence 6

2. Stanley Yeo, BRINGING CLARITY TO PRIVATE DEFENCE Published by NUJS

Law review 2010 According to the author spanning over the eleven sections the right of
private defance is one of the most untidy and convoluted part of the Indian penal code This
may be because society regards the aggressors wrongful conduct as rendering his or her life
less valuable than the defenders. Or it may be that society views the defender as protecting
the general peace of the community as well as his or her person and/or property. Such a
person is deserving of praise rather than blame for undertaking what law enforcement agents
would do had they been present. But before society is prepared to praise or condone the
defenders action, several requirements must be satisfied. Some of these requirements
concern the nature of the threatened attack confronting the defender such as the need for the
impending attack to be of a particular kind and for the attack to have been imminent. Other
requirements concern the degree of force applied by the defender to counter the threatened
attack.7 They include the requirement that the force used by way of private defence was
necessary and proportionate to the threatened danger The Code provisions on private defence
of the person or property expressly or impliedly require the accused to have reasonably
6 Alka Dhaiya Right of private defence: A preventive right or a punitive right
published by GJRA - GLOBAL JOURNAL FOR RESEARCH ANALYSIS

7 Stanley Yeo , BRINGING CLARITY TO PRIVATE DEFENCE Published by NUJS Law review 2010
apprehended the particular danger which he or she claims to have compelled him or her to
take defensive action.

3. RETHINKING "GOOD FAITH" IN EXCESSIVE PRIVATE DEFENCE published

by journal of the Indian law institute vol.40 According to the author in this article since
the inception of Indian penal code the right of private defance appears to be an exception
from several exceptions available under section 300 which defines the offence of murder. A
successful reliance upon any of these, result in a conviction of the lesser serious offence of
culpable homicide not amounting to murder. The courts have generally regarded the clause
"in the exercise in good faith of the right of private defence" as affecting, infer alia, the
infliction of harm by the accused. The author also challenges the Indian Law Commission's
assertion that the IPC formulation of excessive private defence "had been carefully thought
out." A detailed analysis of the Exception will as it stands is concerned only with the
excessive use of force or infliction of harm, reveal that it is capable of two competing
interpretations, viz., the stringent and liberal approaches. 8

4. Law of Private Defence (2006).By justice .K.A. Abdul Gafoor. Universal law
publishing Co., New Delhi According to the author in his article traces back the history of
the right of private defence. History is abound with instances of communities exercising their
right to defend their property and life. Every legal system in the world today recognizes and
accepts that every person has an interest in protecting his life and property this natural right to
defend oneself against violent acts of others to protect life and property was transcended into
a codified law i.e., Indian penal code. The author states that the right of private defance
serves a social purpose therefore, it not only extends to the defence of one`s own body, but
also to defend the body of another person.

8 RETHINKING "GOOD FAITH" IN EXCESSIVE PRIVATE DEFENCE published by

journal of the Indian law institute vol.40 p.g 4
 Chapterization

1. Introduction
2. Evolution
3. Important legal aspects to access private defence
4. Indian legal system
5. Comparative analysis of the legal system of the US and the UK
6. Loopholes in the Indian system
7. Suggestions and Conclusion
Bibliography