RIGHT OF PRIVATE DEFENCE

FOR SUBMISSION IN THE SUBJECT OF

LAW OF CRIMES

Submitted To

Mrs.GOLDA SAHOO

Submitted By

KARAN VYAS

2nd Year BA.LLB (Hons)

BA0150021

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 ACKNOWLEGEMENT

I would like to extend my gratitude to the many people who helped to bring this research
project to fruition. For that, I would like to Golda Sahoo Ma’am, for providing me the
opportunity of expressing my talent and opinion of particular case. I am so deeply grateful for
his help, professionalism, valuable guidance and support throughout this project and through
my entire study that I do not have enough words to express my deep and sincere appreciation.
I am gratefully indebted to her for his very valuable comments on this project work.

My thanks also go to the all my friends for their numerous conversations, questions and help.
Finally, I must express my very profound gratitude to my parents for providing me with
unfailing support and continuous encouragement throughout my research of study and
through the process of researching and writing this project. This accomplishment would not
have been possible without them.

KARAN VYAS

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 TABLE OF CONTENTS

1. INTRODUCTION…..…………………………………………………………...…….4
2. MEANING AND TYPES………………..…………………………………………....5
3. NATURE OF RIGHT OF PRIVATE DEFENCE………..…………………………...6
4. PRIVATE DEFENCE IN INDIAN LEGAL SYSTEM……………………………....7
5. EVOLUTION OF RIGHT OF PRIVATE DEFENCE………………………...…….14
6. PRIVATE DEFENCE IN VARIOUS LEGAL SYSTEMS……………….....………15
7. JUDICIAL REVIEW ON PRIVATE DEFENCE…………………………………...16
8. CONCLUSION……………………………………………………………………....19
9. BIBLIOGRAPHY …………………………………………………………………...20

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 INTRODUCTION

The state has the duty to protect its citizens and their property from harm. However,
circumstances may arise when the aid of state machinery is not available and there is
imminent danger to a person or his property. In such situations, a person is allowed to use
force to ward-off the immediate threat to his or someone else’s person or property. This is the
right of private defence. The people are endowed with this right so that they can defend
themselves and their property and not hesitate due to fear of prosecution. The right, in some
circumstances even extends to causing death of the person who poses such a threat. But such
a right is subject to some restrictions and not available in all circumstances. It is only allowed
when the danger to life or property is immediate and the accused is not the aggressor. The
right of private defence is not available against public servants acting in exercise of their
lawful powers. A person is allowed to use only reasonable force; force that is proportionate to
the impending danger.

Sections 96 to 106 of the penal code state the law relating to the right of private defence of
person and property. The provisions contained in these sections give authority to a man to use
necessary force against an assailant or wrong-doer for the purpose of protecting one’s own
body and property as also another’s body and property when immediate aid from the state
machinery is not readily available; and in so doing he is not answerable in law for his deeds.

Self-help is the first rule of criminal law. The right of private defence is absolutely necessary
for the protection of one’s life, liberty and property. It is a right inherent in a man. But the
kind and amount of force is minutely regulated by law. The use of force to protect one’s
property and person is called the right of private defence1.

150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of private
defence in his draft code with the ambitious project of encouraging a ‘manly spirit’ among
the ‘natives’. The ideal Indian would stand his ground in the face of danger and not hesitate
to defend his own body or property or that of another. He would respond with defensive force
to prevent certain crimes, even to the extent of causing death. As a general idea, the right of
private defence permits individuals to use defensive force which otherwise be illegal, to fend
off attacks threatening certain important interests. Like the defence of necessity, the right of
private defence authorizes individuals to take the law into their own hands2.

1
http://www.legalserviceindia.com/article/l470-Private-Defence.html.
2
Private Defence’, in Collection of Essays marking the 150th Anniversary of the Indian Penal Code (Ashgate),
2011.

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 MEANINGS AND TYPES
At one point in legal history, there was no concept of an exception to criminal liability and
often men were hanged in cases of self-defence because such killing was not justifiable
homicide. Such a person was often at the mercy of Royal clemency.3 However, when society
advanced and the welfare state came into existence, the responsibility of protecting the person
and property of individuals was taken over by the state. The judiciary was able to appreciate
the need for recognising the right of individuals to protect themselves, and the legislature
accordingly included it as a valid defence in the criminal code.
There are many practical definitions of the concept of self-defence4 but basically it is the act
of a person to defend his person or property without any aid of law. The concept of self-
defence being extended to the protection of property was a slightly later development. The
extent, definition and standards attached to this right, although fundamentally the same all
over the world, are subtly different. The manner in which the legislators of different countries
have approached this sensitive topic must be appreciated in relation to the respective social
conditions there which determine the expediency and legal requirements

The expression ‘private defence’ that has been used in the Indian Penal Code, 1860, has not
been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable
framework for the exercise of the right. Thus 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 a crime. This is given in
UN Human Right Declaration in Article 2.5

This right therefore creates an exception to criminal liability. Some of the aspects of the right
of private defence under the IPC are that no right of self-defence can exist against an
unarmed and unoffending individual, the right is available against the aggressor only and it is
only the person who is in imminent danger of person or property and only when no state help
is available. The right of private defence is a natural right which is evinced from particular
circumstances rather than being in the nature of a privilege6.

However, the most important principle is that the right of private defence requires that the
force used in the defence should be necessary and reasonable in the circumstances. But, in the
moments of disturbed mental condition, this cannot be measured in golden scales. Whether
the case of necessity exists must be determined from the viewpoint of the accused and his act
must be viewed in the light of the circumstances as they appear on such occasion. Specific
limitations have also been provided for when the right cannot be validly exercised and also
the provision specifies clearly the cases in which the right can extend to the causing of death

3
James Bar Ames, “Law and Morals”, Harv. L. Rev., Vol. 22, (1908), p. 98.
4
Chambers 20th Century Dictionary (1972) defines self-defence—“defending one’s own person,
rights, etc.”
The Oxford English Dictionary (Oxford, 1961.) defines it as “the act of defending oneself, one’s
rights or position specially in law.”
5
R D Yadav, Law of Crime and Self Defence.
6
www.legalsutra.com/…/right…private-defence/Criminal-Law-Right-of-Private-defence

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of the aggressor. The reasonable apprehension can only be justified if the accused had an
honest belief that there is danger and that such belief is reasonably warranted by the conduct
of the aggressor and the surrounding circumstances. This brings in an iota of an objective
criterion for establishing ‘reasonableness.’ The imminence of danger is also an important
prerequisite for the valid exercise self-defence7. Thus, there should be a reasonable belief that
the danger is imminent and that force must be used to repel it.

NATURE OF RIGHT OF PRIVATE DEFENCE

It is the first duty of man to help himself. The right of self-defence must be fostered in the
citizens of every free country. The right is recognized in every system of law and its extent
varies in inverse ratio to the capacity of the state to protect life and property of the citizens. It
is the primary duty of the state to protect the life and property of the individuals, but no state,
no matter how large its resources, can afford to depute a policeman to dog the steps of every
rouge in the country. One thing should be clear that there is no right of private defence when
there is time to have recourse to the protection of police authorities. The right is not
dependent on the actual criminality of the person resisted. 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. An act done in exercise of this right is
not an offence and does not, therefore, give rise to any right of private defence in return8.

7
http://laws.puchd.ac.in/includes/theses/2010/20101012155857Summary%20%20Dharam%20Pal%20Punia.pdf
8
http://www.legalserviceindia.com/article/l470-Private-Defence.html.

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 PRIVATE DEFENCE IN INDIAN LEGAL SYSTEM

Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is
absolutely necessary. The vigilance of the Magistrates can never make up for vigilance of
each individual on his own behalf. The fear of the law can never restrain bad men so
effectually as the fear of the sum total to individual resistance9. Take away this right and you
become, in so doing, the accomplice of all bad men.” This right is based on two principles, It
is available against the aggressor only, and the right is available only when the defender
entertains reasonable apprehension.

There are three tests for ascertaining reasonable apprehension; they are the objective,
subjective and expanded objective tests -

Generally there are two types of tests that the courts take into consideration when going into
the reasonableness of the apprehension in the exercise of the right i.e. the objective and
subjective tests. However, in recent times there has also emerged a third, combining the two,
called the expanded objective test.

OBJECTIVE TEST

This test contemplates the response the response of the ordinary, standard and average person
placed in the same circumstances as the accused. The application of such a test means that
whenever an ordinary reasonable person believes that the conduct of another appears to be
the conduct of an aggressor and that the aggression is imminent, the accused can use any
reasonable amount of force, as such an ordinary reasonable man would use in the
circumstances, until the aggression is reasonably believed to have ended or the danger is no
longer present. In other words, the situation is assessed objectively in order to give benefit of
private defence to the accused.

Though this test does not take into account any of the subjective or psychological conditions
of the mind of the defendant, it accepts all physical, material and surrounding circumstances
to be those of the standard person. The mental state contemplated in this test is that of the
standard person as it would function in the mind of the accused and under the same physical
conditions.

This is the common law test also accepted in a majority of the states of USA as well as by the
Indian Courts.

SUBJECTIVE TEST

This is the traditional test of the American courts. The subjective test examines the mental
state of the accused, his or her own beliefs and feelings caused by the sway of the events,
without regard to any standard of reasonable conduct. In other words, the circumstances

9
www.e-lawresources.co.uk/Public-and-private-defences.php.

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under which the accused acted in the exercise of the right to private defence are ascertained
subjectively. It means the psychological feelings of the accused in the particular situation are
given due weight in the test.

Reasonableness of apprehension is attributed to the individualistic attitude of the accused in

the circumstances of the case, which sometimes, may lead to injustice. Subjective assessment
of the situation always pays dividends to the defender. That is why the courts are not in
favour of this test. However,,,,,,, it cannot be denied that what was passing in the mind of the
accused (and thus the true mental state at the time) in the face of the aggression could be best
known only by him.

EXPANDED OBJECTIVE TEST

This is the offspring of the two above tests. It is also sometimes called the combination test or
a hybrid test. In this test, the inquiry is based on the individual as a person and is, therefore
subjective, but the test goes on further to determine whether or not the individual accused
acted as a reasonable person. The test requires that the accused’s belief, as to the various
elements of the right, appears reasonable to him or her. It is assumed that he or she is
reasonable. The accused is thus judged by his or her own standards of reasonableness.

This test has often been criticised as inaccurate and misleading. It attempts to look at the
psychological and individual state of mind of the defendant and then determine its
reasonableness according to the standards of reasonableness of that same individual. In the
balancing process of social interest versus social harm, this test contemplates the inclusion in
such balancing of subjectivity which leads to greater individualised justice versus objectivity
which by virtue of its generalisation and standardisation gives more stability to the law but
less personalised justice.

It is submitted that this new hybrid rule seems to combine the advantages of the two prior
tests and must get its fair trial in the courts, this approach being personalised and better suited
to meeting the ends of justice.

RHE RETREAT LAW

One of the much debated issues in connection with the right to private defence is whether a
person, in the light of aggression and consequent danger to body/property, has a duty first to
investigate the practicable possibility of retreating from the scene and avoiding the conflict
rather than actively defending himself using his designated right of self-defence.

The retreat rule had application in England in all cases of self-defence. However, it is evident
from English law that this rule will not apply where attack is made with intent to murder.
This has been summarised in Halsbury’s Laws of England which reads, “A person lawfully
defending himself or his habitation is not bound to retreat or to give way to the aggressor
before killing him; he is even entitled to follow him and to endeavour to capture him; but if
the aggressor is captured or is retreating without offering resistance and is than killed, the
person killing him is guilty of murder.

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Another important issue with regard to the retreat rule has been discussed in Julien’s case10.
The main issue was whether a person who has been forewarned of an attack ought to leave
the place where he is. The court held that there is no duty to retreat until the parties are atleast
within sight of each other and the threat to the person relying on self-defence is so imminent
that he was able to demonstrate that he did not mean to fight.

Ordinarily the retreat rule forbade the use of deadly force by one to whom an avenue for safe
retreat was open. However, the modern trend is that a person who is attacked is entitled to
stand his ground and repel force by force.

In America, however, the matter has frequently considered, and in several justifications it has
been held that if one who, being without fault, is murderously assailed may stand his ground
and justifiably kill his assailant. On the other hand, in several jurisdictions it is held that if the
necessity of killing may be safely avoided by retreating, the party assailed must retreat rather
than kill.11

Today, the continental law is generally favourable to the right to stand one’s ground. The two
reasons given for this are that a man cannot be constrained to take the risk even of a retreat
that seems safe and secondly, he cannot be obliged to yield is honour and dignity by retreat.12
This view has been reaffirmed repeatedly in India in cases such as Mohd. Khan v. State of
M.P.13 which held that the law does not require a law-abiding citizen to behave like a coward,
further holding that there is nothing more degrading to the human spirit than to run away in
face of danger.

The Right to private defence of a citizen, where one can practically take law in his own hands
to defend his own person and property or that of others, is clearly defined in Section 96 to
Section 106 of the Indian Penal Code.

Section 96

It talks about things done in private defence – Nothing is an offence, which is done in the
exercise of the right of private defence.

Right of private defence cannot be said to be an offence in return. The right of self-defence
under Section 96 is not, absolute but is clearly qualified by Section 99 which says that the
right in no case extends to the inflicting of more harm than it is necessary for the purpose of
defence. It is well settled that in a free fight, no right of private defence is available to either
party and each individual is responsible for his own acts. The right of private defence will
completely absolve a person from all guilt even when he causes the death of another person
in the following situations, i.e If the deceased was the actual assailant, and If the offence
committed by the deceased, which occasioned the cause of the exercise of the right of private

10
[1969] 2 All E.R. 856.
11
Joseph Beale, “Retreat from a murderous assault”, Harv. L. Rev., Vol. 16, (1902), p. 573.
12
Supra., n. 11, p. 189.
13
1972 Cri.L.J. 661 at 665.

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defence of body and property falls within anyone of the six or four categories enumerated in
Sections 100 and 103 of the penal code.

Section 97

It talks about Right of private defence of the body and of Property: – Every person has a
right, subject to the restrictions contained in Section 99, to defend-

 First-His own body, and the body of any other person, against any offence affecting
the human body;
 Secondly-The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an attempt to commit theft,
robbery, mischief for criminal trespass.

This Section limits exercise of the right of private defence to the extent of absolute necessity.
It must not be more than what is necessary for defending aggression. There must be
reasonable apprehension of danger that comes from the aggressor. This Section divides the
right of private defence into two parts, i.e. the first part deals with the right of private defence
of person, and the second part with the right of private defence of property14.

Section 99

It lays down the acts against which there is no right of private defence: – There is no right of
private defence against an act which does not reasonably cause the apprehension of death or
of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith
under color of his office, though that act, may not be strictly justifiable by law.

Section 99 lays down the conditions and limits within which the right of private defence can
be exercised. The first two clauses provide that the right of private defence cannot be invoked
against a public servant or a person acting in good faith in the exercise of his legal duty
provided that the act is not illegal15. Similarly, clause three restricts the right of private
defence if there is time to seek help of public authorities. And the right must be exercised in
proportion to harm to be inflicted. In other words, there is no right of private defence:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or direction;
 When there is sufficient time for recourse to public authorities; and
 The quantum of harm that may be caused shall in no case be in excess of harm that
may be necessary for the purpose of defence.

Section100

It specifies when the right of private defence of the body extends to causing death.

14
http://www.legalserviceindia.com/article/l470-Private-Defence.html.
15
http://www.indiankanoon.org/

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The right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if
the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely: —

 First-Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
 Secondly-Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault;
 Thirdly- An assault with the intention of committing rape;
 Fourthly- An assault with the intention of gratifying unnatural lust;
 Fifthly- An assault with the intention of kidnapping or abducting;
 Sixthly- An assault with the intention of wrongfully confining a person, under
circumstances that may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release.
 Seventhly – an act of throwing acid or attempting to throw acid.

To invoke the provisions of Section 100 of I.P.C., four conditions must exist:-

 The person exercising the right of private defense must be free from fault in bringing
about the encounter,
 There must be an impending peril to life or of great bodily harm,
 There must be no safe or reasonable mode of escape by retreat,
 There must have been a necessity for taking life.

Section101

It prescribes when such right extends to causing any harm other than death:-

If the offence be not of any of the descriptions enumerated in the last preceding section, the
right of private defence of the body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary
causing to the assailant of any harm other than death16.

Section 102

It is very important as it deals with the commencement and continuance of the right of private
defence of the body:

The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed; and it continues as long as such apprehension of danger to the
body continues. The apprehension of danger must be reasonable, not fanciful. For example,
one cannot shoot one’s enemy from a long distance, even if he is armed with a dangerous
weapon and means to kill. This is because he has not attacked you and therefore there is no

16
http://www.legalsutra.com/.../right...private-defence/Criminal-Law-Right-of-Private-defence

11 | L A W O F C R I M E S
reasonable apprehension of attack. In other words, there is no attack and hence no right of
private defence arises. Moreover the danger must be present and imminent17.

Section103

It specifies when the right of private defence of property extends to causing death: –

The right of private defence of property extends, under the restrictions mentioned in Section
99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence,
the committing of which, or the attempting to commit which, occasions the exercise of the
right, be an offence of any of the descriptions hereinafter enumerated, namely: Robbery,
House-breaking by night, Mischief by fire committed on any building, tent or vessel, which
building, tent of vessel is used as a human dwelling, or as a place for the custody of property,
Theft, mischief, or house-trespass, under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence, if such right of private
defence is not exercised.

Section 103 provides the right of private defence to the property whereas Section 100 is
meant for exercising the right of private defence to the body of a person. It justifies homicide
in case of robbery, house breaking by night, arson and the theft, mischief or house trespass
which cause apprehension or grievous harm. If a person does not have possession over the
property, he cannot claim any right of private defence regarding such property18. Right to
dispossess or throw out a trespasser is not available to the true owner if the trespasser has
been successful in accomplishing his possession to his knowledge. This right can be only
exercised against certain criminal acts that are mentioned under this section.

Section104

It tells us when such right extends to causing any harm other than death:

If the offence, the committing of which, or the attempting to commit which, occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of
the descriptions enumerated in the last preceding section, that right does not extend to the
voluntary causing of death, but does extend, subject to the restrictions mentioned in section
99, to the voluntary causing to the wrongdoer of any harm other than death. This Section
cannot be said to be giving a concession to the accused to exceed their right of private
defence in any way19. If anyone exceeds the right of private defence and causes death of the
trespasser, he would be guilty under Section 304, Part II. This Section is corollary to Section
103 as Section 101 is a corollary to Section 100.

Section105

It prescribes the commencement and continuance of the right of private defence of property.

17
http://www.legalserviceindia.com/article/l470-Private-Defence.html
18
http://www.e-lawresources.co.uk/Public-and-private-defences.php
19
scienceblogs.com/deltoid/2000/01/01/selfdefence

12 | L A W O F C R I M E S
The Right of private defence of property commences when a reasonable apprehension of
danger to the property commences. The right of private defence of property against theft
continues till the offender has affected his retreat with the property or either the assistance of
the public authorities is obtained, or the property has been recovered20. The right of private
defence of property against robbery continues as long as the offender causes or attempts to
cause to any person death or hurt or wrongful restraint of as long as the fear of instant death
or of instant hurt or of instant personal restraint continues

The right of private defence of property against criminal trespass or mischief continues as
long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as
the house-trespass which has been begun by such house-breaking continues.

Section106

It talks about right of private defence against deadly assault when there is risk of harm to
innocent person: –

If in the exercise of the right of private defence against an assault, which reasonably causes
the apprehension of death, the defender be so situated that he cannot effectually exercise that
right without risk of harm to an innocent person his right or private defence extends to the
running of that risk.

20
http://www.legalserviceindia.com/article/l470-Private-Defence.html

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 EVOLUTION OF RIGHT OF PRIVATE DEFENCE

In Roman law, homicide was considered to be an act by which the life of a human-being was
taken away. There were two degrees of criminal homicide, namely, murder and
manslaughter, and two degrees of homicide that did not expose a person to punishment,
namely, justifiable and excusable.21 Self-defence was placed in the category of justifiable
homicide. In self-defence violence was lawful: ‘Vim enim vi defendere omnes leges emniaque
jure permittunt’ (A man, therefore, incurs no liability, if he kills another’s slave who attacks
him.)22. The Justinian code and the Twelve Tables reiterated this right of private defence- the
Code holding that no greater force than what was sufficient to ward off the threatened danger
was permitted and the Tables on the other hand, allowing killing in such a case without
restrictions regarding it to be permissible self-redress rather than self-defence.

Under English law the status of the right of self-defence underwent a series of changes
through the ages. In the ancient period, there was absolute liability even for homicide
committed se defendendo. In the Medieval period, the theory of pardon developed and it
became excusable, whereas in the Modern Age, homicide committed in self-defence is
treated as justifiable, because it is presumed that such an act is not backed with evil intent. In
the early days, the law regarded the word and the act of the individual but it did not search the
heart of the man. It was the age of strict liability23. Man was held responsible for his acts
irrespective of his intentions. His mental state was not taken into account when determining
liability for the commission of the crime. It was the external conduct and the injury upon
which liability was imposed. The accidental injuries and the injuries inflicted during self-
defence, also attracted liability. Thus, criminal liability was not related to the evil intention of
the actor.

However, in the 13th century there was a shift from strict liability and emphasis was laid on
the mental element. During this period, killing was justified in a few exceptional cases. One
who killed in misadventure or in self-defence was still guilty of a crime, although he deserved
a pardon from the King24. During the Medieval period, though the accused obtained pardon
yet he forfeited his goods for the crime committed in self-defence. The moral sense of the
community could not tolerate indefinitely the idea that a blameless self-defender was a
criminal. Ultimately, the jury was allowed to give a verdict of not guilty in such cases.
Pardon of the King soon became a formality in such cases and thus grew the concept of
excusable homicide. The act of pardon was a kind of excuse25. The word excuse itself
denoted the condonation of wrong committed by the offender. Blackstone perceived the
essence of excuses to be ‘the want or defect of will’. This all changed in the modern period.
In modern times, there is a presumption that there is no mens rea in the homicides committed
21
Lord Mackenzie, Studies in Roman Law (London, 1898), p. 415.
22
http://www.legalserviceindia.com/article/l470-Private-Defence.html
23
The pragmatic nature of private defence under criminal jurisprudence in Nigeria, By Akande, I. F, Oji, S.
I.,2012.
24
scienceblogs.com/deltoid/2000/01/01/selfdefence
25
http://www.e-lawresources.co.uk/Public-and-private-defences.php

14 | L A W O F C R I M E S
in self-defence and as such it has become a justifiable general defence in law. Thus, now no
criminal liability is attached to the accused in such cases. This is in conformity with the
provisions of Article 2 of the European Convention on Human Rights. Thus, in modern times
every evolved legal system has accepted the right of self-defence as a universal one.

PRIVATE DEFENCE IN VARIOUS LEGAL SYSTEMS

ENGLISH LAW

As the common law system does not provide a statutory definition of self-defence, it is often
the opinions of legal authorities that are relied upon. Black’s Law Dictionary enumerates two
elements that are necessary to constitute self-defence, namely - Accused does not provoke
difficulty, and there must be impending peril without convenient or reasonable mode of
escape. On the other hand Glanville Williams’ analysis of the elements is more
comprehensive: –

 The force is threatened against the person,

 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,

The person threatened must actually believe that a danger exists, that the use of force is
necessary and that the kind and amount of force being used is required in the circumstances,
and that the above beliefs are reasonable26.

AMERICAN LAW

The position under American law is also very similar. Great importance is given to the
following concepts when dealing with the concept of self-defence. Requirement of
reasonableness (a reasonable and honest belief is essential), only that amount of force should
be used which reasonably appears necessary to prevent the threatened harm. Thus, it can be
seen that in the various legal systems of the world, there are certain common established
principles pertaining to self-defence.

26
The pragmatic nature of private defence under criminal jurisprudence in Nigeria, By Akande, I. F,
Oji, S. I.,2012.

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 JUDICIAL VIEW ON PRIVATE DEFENCE

The protection of life and property is axiomatic in every civilized society and because it is
impossible for the State to do so on every occasion – as law enforcement officers cannot be
omnipresent, the individual is given the right of private defence. The right of private defence
legally accords to the individuals the right to take reasonably necessary measures to protect
themselves under special circumstances. Notably, on the execution of the private defence
provisions in the Penal Code, the framers said “we leave it still in a very imperfect state…we
are inclined to think that it must always be one of the least exact parts of every system of
criminal law27.” This suggests that they recognized the necessity for latent ambiguity to allow
judges the flexibility to read and apply the provisions so as to achieve fairness.

However, the local courts have overlooked this discretion conferred upon them and instead
opted for a far too restrictive (and even unreasonable) interpretation of the provisions to the
extent where private defence is hardly adequate as a defence, defeating the intention of the
provision. 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 10228. Evidently, the local courts have adopted a strict objective approach in determining
“reasonable apprehension”, ignoring its inherent ambiguity. This is in contrast to the current
English law that judges the nature of the danger wholly according to that of the accused’s
perception (purely subjective test).

Darshan Singh v. State of Punjab29

The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It
observed that a person cannot be expected to act in a cowardly manner when confronted with
an imminent threat to life and has got every right to kill the aggressor in self defense. A
bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a
person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature
clearly intended to arouse and encourage the spirit of self-defense amongst the citizens, when
faced with grave danger.“ The law does not require a law-abiding citizen to behave like a
coward when confronted with an imminent unlawful aggression. As repeatedly observed by
this court, there is nothing more degrading to the human spirit than to run away in face of
danger. Right of private defense is thus designed to serve a social purpose and deserves to be
fostered within the prescribed limit30.”

The court laid down ten guidelines where right of self-defence is available to a citizen, but
also warned that in the disguise of self-defence, one cannot be allowed to endanger or

27
‘Private Defence’, in Collection of Essays marking the 150th Anniversary of the Indian Penal Code
(Ashgate), 2011.
28
http://www.legalserviceindia.com/
29
Criminal Appeal 1057 of 2002 http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-
guidelines-for-right-of-private-defence-for-citizens/
30
http://www.legalserviceindia.com/article/l470-Private-Defence.html

16 | L A W O F C R I M E S
threaten the lives and properties of others or for the purpose of taking personal revenge. The
apex court concluded that a person who is under imminent threat is not expected to use force
exactly required to repel the attack and his behaviour cannot be weighed on “golden scales.”

The Court declared their legal position under the following 10 guidelines31:

1. Self-preservation is a basic human instinct and is duly recognized by the criminal

jurisprudence of all civilized countries. All free, democratic and civilized countries
recognize the right of private defense within certain reasonable limits.
2. The right of private defense is available only to one who is suddenly confronted with
the necessity of averting an impending danger and not of self-creation.
3. A mere reasonable apprehension is enough to put the right of self-defense into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defense. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed if the right of private defense is not exercised.
4. The right of private defense commences as soon as a reasonable apprehension arises
and it is co-terminus with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defense step by step
with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.
7. It is well settled that even if the accused does not plead self-defense, it is open to
consider such a plea if the same arises from the material on record.
8. The accused need not prove the existence of the right of private defense beyond
reasonable doubt.
9. The Indian Penal Code confers the right of private defense only when the unlawful or
wrongful act is an offence.
10. A person who is in imminent and reasonable danger of losing his life or limb may, in
exercise of self defense, inflict any harm (even extending to death) on his assailant
either when the assault is attempted or directly threatened.

Yogendra Moraji v. State32

The Supreme Court discussed in detail the extent and the limitations of the right of private
defence of body. One of the aspects emphasized by the court was that there must be no safe
or reasonable mode of escape by retreat for the person confronted with an impending peril to
life or of grave bodily harm except by inflicting death on the assailant. This aspect has create
quite a confusion as it indirectly suggests that once should first try to see the possibility of a
retreat than to defend by using force, which is contrary to the principle that the law does not
encourage cowardice on the part of one who is attacked. But another viewpoint is that this

31
http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-
defence-for-citizens/
32
AIR 1980 SC 660.

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retreat theory in fact is an acceptance of the English common law principle of defence of
body or property under which the common law courts always insisted to look first as to
whether the accused could prevent the commission of crime against him by retreating.

Nand Kishore Lal v. Emperor33

Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism.
Nearly a year after the abduction, the relatives of the woman’s husband came and demanded
that she return. The accused refused to comply and the woman herself expressly stated her
unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives attempted to
take her away by force. The accused resisted the attempt and in so doing one of them inflicted
a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held
that the right of the accused to defend the woman against her assailants extended under this
section to the causing of death and they had, therefore, committed no offence.

Mohinder Pal Jolly v. State of Punjab34

Workers of a factory threw brickbats from outside the gates, and the factory owner by a shot
from his revolver caused the death of a worker, it was held that this section did not protect
him, as there was no apprehension of death or grievous hurt.

Mithu Pandey v. State35

Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of fruit
by labourers from the trees that were in the possession of the accused persons who protested
against the act. In the altercation that followed one of the accused suffered multiple injuries
because of the assault. The accused used force resulting in death. The Patna High Court held
that the accused were entitled to the right of private defence even to the extent of causing
death.

Jassa Singh v. State of Haryana36

The Supreme Court held that the right of private defence of property would not extend to the
causing of the death of the person who committed such acts if the act of trespass is in respect
of an open land. Only a house trespass committed under such circumstances as may
reasonably caused death or grievous hurt is enumerated as one of the offences under Section
103.

33
AIR 1924 Pat 789.
34
AIR 1979 SC 577.
35
1967 CrLJ 102 (Pat).
36
2002 CrLJ 563(SC).

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 CONCLUSION

In general, private defence is an excuse for any crime against the person or property. It also
applies to the defence of a stranger, and may be used not only against culpable but against
innocent aggressors.

The defence is allowed only when it is immediately necessary-against threatened violence. A

person who acts under a mistaken belief in the need for defence is protected, except that the
mistake must be reasonable. In principle, it should be enough that the force used was in fact
necessary for defence, even though the actor did not know this; but the law is not clear. There
is no duty to retreat, as such, but even a defender must wherever possible make plain his
desire to withdraw from the combat. The right of private defence is not lost by reason of the
defender’s having refused to comply with unlawful commands.

The force used in defence must be not only necessary for the purpose of avoiding the attack
but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the
negative form that the force must not be such that a reasonable man would have regarded it as
being out of all proportion to the danger37.

The carrying of firearms and other offensive weapons is generally forbidden, but (1) a thing
is not an “offensive weapon” if it is not offensive per se and is carried only to frighten; (2) a
person does not “have it with him” if he merely snatches it up in the emergency of defence.

The right of defence avails against the police if they act illegally, but the defender cannot take
benefit from a mistake as to the law of arrest or self-defence38. The traditional rule is that
even death may be inflicted in defence of the possession of a dwelling.

The occupier of premises may use necessary and reasonable force to defend them against a
trespasser, or one reasonably thought to be a trespasser; and it seems that even a licensee
(such as a lodger) can eject trespassing strangers. It is a statutory offence to set spring guns or
mantraps, except in a dwelling house between sunset and sunrise. It has not been decided
whether the exception operates to confer an exemption from the ordinary law of offences
against the person. Such defences as spikes and dogs are lawful if reasonable 39. Guard dogs
must, by statute, be kept under full control, except in private houses or on agricultural land.

Thus, we can see the right of private defence is very helpful in giving citizens a weapon
which in a case that it’s not misused is subject to certain restrictions, helps them protect their
and others’ lives and property.

37
http://www.jdsupra.com/legalnews/right-of-private-defense-in-india-07062/
38
scienceblogs.com/deltoid/2000/01/01/selfdefence
39
http://www.legalserviceindia.com/article/l470-Private-Defence.html.

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 BIBLIOGRAPHY

Websites:
 http://www.legalserviceindia.com/article/l470-Private-Defence.html.
 http://www.indiankanoon.org/
 http://www.legalserviceindia.com/article/l470-Private-Defence.html
 http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-
for-right-of-private-defence-for-citizens/
 http://www.jdsupra.com/legalnews/right-of-private-defense-in-india-07062/
 http://www.e-lawresources.co.uk/Public-and-private-defences.php

Articles:
 Private Defence’, in Collection of Essays marking the 150th Anniversary of the
Indian Penal Code (Ashgate), 2011.
 The pragmatic nature of private defence under criminal jurisprudence in Nigeria, By
Akande, I. F, Oji, S. I.,2012.

Books:
 R D Yadav, Law of Crime and Self Defence.
 James Bar Ames, “Law and Morals”, Harv. L. Rev., Vol. 22, (1908), p.98
 K I Vibhute, P.S.A.Pillai’s CRIMINAL LAW, 12TH Edition, 2013.
 Lord Mackenzie, Studies in Roman Law (London, 1898), p. 415.

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