WRONGFUL PROSECUTION (MISCARRIGE OF JUSTICE) IN INDIA

A CRITICAL SRUDY*
Anil Kumar Shukla, 23/LL.M./ILI/2018**

I Introduction
Javed shot him dead, 1500 cases of malicious prosecution, 40 cases of malicious
prosecution in High Court of Delhi,

Justice Hegde Committee Report, False and malicious prosecution, Judges no FIR, 5 lacs
compensation to Punjab people, why not 5 crores?

1. Registration of false FIR

2. Tortures in PS thereafter,
3. Factual reality that accused is mercilessly beaten sometimes even death by the police
but Medical officers Doctors might have indicated, reported actual physical and mental
injury suffered by the accused under police custody.
4. Accused is produced before Magistrate within 24 hours?
5. Legal Aid, Bar Association, Lawyers
6. Torture in prison

What mental injury faced by members of family, compensation fund

Disabled

107 case Madhulimye case

Extortion crores of money

Endlessly popular level care

Difference jurisdiction, end of this point, police arrest, terrorists, float, jail for 6-7 years,
system designated, Law Commission Report, CJI Dipak Mishra wrong, justice lurched, works
CJA, advantages and disadvantages, prosecution and defence side, balance between victim role, 4
G notice, look out circular, 41 A notice,

Arijit Pasayat, J. succinctly pointed out the private defence concept in James Martin v.
State of Kerala2 in the following words:

Self-Preservation is the prime instinct of human being. The right of private

defence is a recognised right in in the criminal law. Therefore, section 96 of the
Indian Penal Code, 1860 provides that nothing is an offence which is done in
exercise of the right of private defence.3 The question where exercise of such
right is claimed and whether the ‘Lakshaman Rekha’ is applicable to its exercise
has been extended. Section 99 IPC delineates the extent to which the right may be
exercised.

The right of private defence is available in every free, civilized and democratic society,
preventive not punitive, defensive not aggressive, codified in section 96 to 106 of IPC. The right of
private defence to defend one’s body and property as well as body and property of another against
certain specified offences as mentioned in section 97 of IPC4 is not absolute, but subject to limit
and restrictions as specified in section 99 of IPC. The extent of and limitation to exercise of such
right is further elaborated and clearly mentioned by the Apex court in Rajinder v. State of
Haryana5.

II Right of private defence of property

Statutory mandate of section 97 are subjected to conditions, more specifically, sections 97
Secondly6, 987, 998, 1039, 10410 and 10511 deals with right of private defence of property.
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1. Supra note 4
2. 98. Right of Private defence against the act of a person of unsound mind, etc. – When an act, which
would otherwise be a certain offence, is not that offence, by reason of the youth the want of maturity of
understanding, the unsoundness of mind or the intoxication of that person doing that act, or by reason of
any misconception on the part of that person, every person has the same right of private defence against
that act which he would have if the act were that offence.
3. 99. 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 colour of his office, though that act,
may not be strictly justifiable by law.
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 the direction of a public servant acting in
good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of
the public authorities.
Extent to which the right may be exercised.– The right of private defence if no case extents to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.–A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant as such, unless he knows or has reason to believe, that the
person doing the act is such public servant.
Explanation 2.–A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows or has reason to believe, that
the person doing the act is acting by such direction, or unless such person states, the authority under
which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
4. 103. 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: –
First.–Robbery;
Secondly.–House-breaking by night;
Thirdly.–Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is
used as a human dwelling, or as place for the custody of property;
Fourthly.–Theft, mischief, or house-trespass, under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence, if such of right of private defence is
not exercised.
5. 104. When such right extends to causing any harm other than death. – If the offence, the
committing of which, or the attempting to 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 death, but does extend subject to the
restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than
death.
 6. 105. Commencement and continuance of the right of private defence of property. – The right of
private defence of property commences when reasonable apprehension of danger to the property
commences.
The right of private defence of property against theft continues till the offender has effected his
retreat with the property or either the assistance of the public authorities is obtained, or the property has
been recovered.

1. When right of private defence of property is available to a person.

Section 97 Secondly clearly says that such right is available only when
a. The property, whether movable or immovable, of
b. himself or of any other person,
c. against any act which is an offence falling under the definition of
1 theft,2 robbery, 3 mischief or 4 criminal trespass or 5 which is an attempt to

FOOT NOTES
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**
Under the ablest guidance & valuable suggestions by my mentor, Assistant Professor Ms. Latika
Vashist, Indian Law Institute (ILI), New Delhi.
*
LL.M. Scholar, ILI, New Delhi.
1. Hon’ble Justice Michael Kirby, Justice of High Court of Austrailia.(eds.), JUDICIAL ACTIVISM
Authority, Principle, and Policy in the Judicial Methods 3 (Ashgate Publishing Limited, Fantham
Surrey, GU9 7PT, England 1edn, 2011).
2. Id. at 185.
3. David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law 427 (Oxford University Press,
Oxford, 15edn, 2015).
4. Supra note 2.
5. Alan Norrie, Crime, Reason and History 276 (Cambridge University Press, Cambridge, 3edn, 2014).
6. Vidhya Singh v. State of M.P. (1971) 3 SCC 244: 1971 SCC (Cri) 469.
7. (2004) 2 SCC 203: 2004 SCC (Cri) 487.
8. Section 96 IPC, 96. Things done in private defence. – Nothing is an offence which is done in exercise
of t he right of private defence.
9. Section 97 IPC, 97. 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 or criminal trespass.
10. (1995) 5 SCC 187: 1995 SCC (Cri) 852.