RIGHT OF PRIVATE DEFENCE OF BODY – A STUDY

PROPOSED BY: -
NAME –
ROLL. NO. –

PROPOSAL SUBMITTED IN FULFILMENT OF THE COURSE TITLED CRIMINAL LAW-1

FOR THE DEGREE BBA.LLB(HONS.)

PROPOSED TO: -
FACULTY OF LAW
ACKNOWLEDGEMENT

I would like to thank my faculty………………………. whose guidance helped me a lot with

structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU

Name:

Roll No:

Semester :
DECLARTAION

I hereby declare that the work reported in the B.A. LL.B. (Hons.) project report entitled

“RIGHT OF PRIVATE DEFENCE OF BODY A STUDY” submitted at National Law

University is an authentic record of my work carried out under the supervision

of………………., Assistant Professor of Law. I have not submitted this work elsewhere for any

other degree or diploma. I am fully responsible for the contents of my project report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE –

ROLL NO. -
TABLE OF CASES:

i. Chotelal vs State AIR 1956 All 153

ii. Darshan Singh vs. State of Punjab AIR 2010 SC 1212

iii. Emperor vs. Mammun (1912) 22 MLJ 333

iv. Jassa Singh vs. State of Haryana AIR 2002 SC 520

v. Kala Singh vs. State of Rajasthan 1987 WLN UC 505

vi. Mohinder Pal Jolly vs. State of Punjab 1979 SCR (2) 805

vii. V.C.Cheriyan vs. State of Kerala 1982 CriLJ 2071

viii. Vishvas Aba Kurane vs. State of Maharashtra AIR 1978 SC 414

ix. Yogendra Moraji vs. State AIR 1980 SC 660

TABLE OF CONTENTS:

1. INTRODUCTION ……………………………...………………………………. Pg 4

2. OBJECTIVE OF THE STUDY…….………………………………….…………Pg 5

3. HYPOTHESIS……………………………………………………………………Pg 5

4. RESEARCH METHODOLOGY…………………………………………………Pg 5

5. SOURCES OF DATA……………………………………………………...……. Pg 5

6. REVIEW OF LITERARURE…………………………………………………......Pg 6

7. LIMITATIONS OF THE STUDY………………………………………………. Pg 6

8. CHAPTERIZATION

I. RIGHT OF PRIVATE DEFENCE OF BODY - OBJECT………...…………...Pg 7

II. SCOPE OF PRIVATE DEFENCE OF BODY……………………………... …Pg 9

III. RIGHT OF PRIVATE DEFENCE EXTENDING TO CAUSING DEATH.....Pg 12

IV. CONCLUSION AND SUGGESTIONS…………………………...…….……Pg 16

9. BIBLIOGRAPHY………………………………………………………………...Pg 17
INTRODUCTION

Generally speaking, defences allow the accused to avoid criminal responsibility. Defences arise
in different ways. In one way, the defendant may defend himself by proving that he did not
commit the crime. For example, take the case of an offender who takes the plea of alibi. By
raising this what he says is that he has not committed the crime. In yet another instance, a
material element or circumstance may not be available. In such a case failure to establish the
circumstance provides the defence. There are two types of defences: justificatory, and
excusatory. In the former the accused admits responsibility for crimes but argues that, under
the circumstances, what he did was right. In excusatory defences, the accused admits that what
he did was wrong but pleads, that, under the circumstances, he was not responsible for what he
did. Ordinarily, the burden of proof is on the prosecution. However, in the case of affirmative
defences where the accused asks for concessional consideration including self-defence,
necessity, insanity, alcoholic insanity or drunkenness, duress etc. the burden falls on the
accused. It has to be noted that if the prosecution comes across evidence capable of proving
any of these defences, fairness demands that the prosecution makes it available to court for
giving the benefit to the accused. Evidence that does not lead to a perfect defence may result
in conviction for a lesser offence as in the case of the defence of sudden and grave provocation;
the murder charge is reduced to culpable homicide not amounting to murder.

The right of private defence, as the name suggests, is an act of defence and not of an offence.
Consequently, it cannot be allowed to be used as a shield to justify an aggression. This requires
a very careful weighing of the facts and circumstances of each case to decide as to whether the
accused had in fact acted under this right. Assumptions without any reasonable basis on the
part of the accused about the possibility of an attack do not entitle him to exercise this right. It
was held in a case that the distance between the aggressor and the target may have a bearing
on the question whether the gesture amounted to assault. No precise yardstick can be provided
to fix such a distance, since it depends upon the situation, the weapon used, the background
and the degree of the thirst to attack etc.

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

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• If the offence committed by the deceased which occasioned the cause of the exercise of the
right of private defence of body and property falls within anyone of the six or four categories
enumerated in Sections 100 and 103 of the penal code.

OBJECTIVES OF THE STUDY:

• The researcher’s prime aim is to present a detailed study of " RIGHT OF PRIVATE
DEFENCE OF BODY – A STUDY", through articles, affirmations, decisions and
suggestions.
• The researcher aims to descriptively provide a critical overview of the topics arising.
• The main goal of this research is to understand the legal position in Indian context.
• And also to know about evolution of related case law(s) with changing spectra of
society.

HYPOTHESIS:

• Right of private defence of body has potential for misuse but the operation of courts
adequately protects against it.
• Private defence of body is a boon which helps shield the people who fight against those
who may so intend to cause them harm or injury, and as such, is a necessity in these
modern times.

RESEARCH METHODOLOGY:
The researcher will be relying on Doctrinal method of research to complete the project. These
involve various primary and secondary sources of literature and insights.

SOURCES OF DATA

1. PRIMARY SOURCES
a. CONSTITUTION OF INDIA.

b. INDIAN PENAL CODE, 1860.

2. SECONDARY SOURCES
a. BLOGS
b. BOOKS

c. CASE COMMENTARIES.
d. JOURNALS

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REVIEW OF LITERATURE

• Ratanlal & Dhirajlal, “THE INDIAN PENAL CODE” (34th Ed. 2014, Lexis Nexis)
Revised by Justice K.T. Thomas and M.A. Rashid.

Into its 118th year, Ratanlal & Dhirajlal, The Indian Penal Code is the oldest commentary on
Indian Penal Code. The fact that this book is into its 34th edition (herein after ‘the current
edition) is a testimony of its biblical value. This edition has been brought forth by two authors
who have affixed their indelible imprint in their respective fields. Honourable Mr. Justice K.T.
Thomas is a doyen in the legal echelons. Amongst the pantheons in the temple of justice, His
Lordship has captained and stewarded several landmark cases in Constitutional law and
Criminal law. Adv. M.A. Rashid is an erudite exuberant and an enterprising author who has
rendered pioneering contribution to legal literature.

• K.D. Gaur, COMMENTARY ON THE INDIAN PENAL CODE (2nd Ed. 2013, Lexis Nexis).

The Indian Penal Code by Professor K.D. Gaur is a marvelous classic work in the fields of
criminal law of outstanding merit. Unlike the traditional treatise in criminal law, the unique
feature of the book is that it explores the untouched arena in criminal jurisprudence dealing
with nature and concept of crime and the scope of punishment under the Indian Penal Code.
The latest innovations through judicial and administrative techniques of creativity have been
well projected in the book wherein the judiciary has played an innovative and pivotal role in
evolving new concept of criminal jurisprudence. The author briefly outlines the fundamentals
of crime and criminal law, principles of criminal liability, mens rea, vicarious and strict liability
and discusses elaborately almost every type of punishable offences including offences against
human body.

LIMITATIONS OF THE STUDY:

The researcher has territorial, monetary and time limitations in completing the project.

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CHAPTERIZATION:

1. RIGHT OF PRIVATE DEFENCE OF BODY: OBJECT

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 defence 1.

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 hands 2.

Private Defence: Meaning And Types

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 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

1
http://www.legalserviceindia.com/article/l470-Private-Defence.html.
2
https://www.academia.edu/1437252/Private_Defence_in_Collection_of_Essays_marking_the_150th_Annivers
ary_of_the_Indian_Penal_Code_Ash

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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 privilege 3.

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 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-defence4. Thus, there should be a reasonable belief that the danger is imminent
and that force must be used to repel it.

Nature Of The Right - 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 return 5.

3
www.legalsutra.com/…/right…private-defence/Criminal-Law-Right-of-Private-defence.
4
http://laws.puchd.ac.in/includes/theses/2010/20101012155857Summary%20%20Dharam%20Pal%20Punia.pdf
5
http://www.legalserviceindia.com/article/l470-Private-Defence.html.

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 2. SCOPE OF PRIVATE DEFENCE OF BODY

Section 96. Things done in private defence6 - Nothing is an offence, which is done in the
exercise of the right of private defence.

Section 97. Right of private defence of the body and of property 7 - 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.
Section 97 of Indian Penal Code divides the right of private defence into two parts. first part
deals with the right of private defence of person and second part with the right of private
defence of property. The rights of defends is not only to the defence of own body or property
but also extend to defending the body and property of any other person. Even a stranger can
also defend the person or property of another person and vice versa.

Chotelal vs State8
B was constructing a structure on a land subject to dispute between A and B. A was trying to
demolish the same. B therefore assaulted A with a lathi. It was held that A was responsible
for the crime of waste and B had therefore a right to defend his property.

Section 98. Right of private defence against the act of a person of unsound mind, etc. 9-
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
the 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.

6
Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India)
7
Id
8
AIR 1956 All 153
9
Supra note 6

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Section 99. Act against which there is no right of private defence 10 - Section 99 lays down
that the conditions and limits within which the right of private defence can be exercised. The
section gives a defensive right to a man and not an offensive right. That is to say, it does not
arm a man with fire and ammunition, but encourage him to help himself and others, if there is
a reasonable apprehension of danger to life and property. 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 illegal. 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;
• Where 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.
The protection to public servants is not absolute. It is subject to restrictions. The acts in either
of these clauses must not be of serious consequences resulting in apprehension of causing
death or of grievous hurt which would deprive one of his right of private defence.
To avail the benefit of those clauses ( i ) the act done or attempted to be done by a public
servant must be done in good faith; ( ii ) the act must be done under the colour of his office;
and ( iii ) there must be reasonable grounds for believing that the acts were done by a public
servant as such or under his authority in the exercise of his legal duty and that the act is not
illegal. Good faith plays a vital role under this section. Good faith does not require logical
infallibility but due care and caution as defined under Section 52 of the code.
Emperor vs Mammun11
The accused, five in number, went out on a moonlit night armed with clubs, and assaulted a
man who was cutting rice in their field. The man received six distinct fractures of the skull-
bones besides other wounds and died on the spot. The accused on being charged with murder
pleaded right of private defence of their property. Held under Section 99 there is no right of
private defence in cases where there is time to have recourse to the protection of the public
authorities.

10
Id
11
(1912) 22 MLJ 333

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Section102. Commencement and continuance of the right of private defence of the
body12 - 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 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 imminent.
Kala Singh vs State of Rajasthan13
The deceased who was a strong man of dangerous character and who had killed one person
previously picked up a quarrel with the accused, a weakling. He threw the accused on the
ground, pressed his neck and bit him. The accused when he was free from the clutches of this
brute took up a light hatchet and gave three blows of the same on the brute’s head. The
deceased died three days later. It was held that the conduct of the deceased was aggressive
and the circumstances raised a strong apprehension in the mind of the accused that he would
be killed otherwise. The apprehension, however, must be reasonable and the violence
inflicted must be proportionate and commensurate with the quality and character of the act
done. Idle threat and every apprehension of a rash and timid mind will not justify the exercise
of the right of private defence.

Section105. Commencement and continuance of the right of private defence of

property14 - 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 recovered. 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.

12
supra note 6
13
1987 WLN UC 505
14
supra note 6

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• 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. Right of private defence against deadly assault when there is risk of harm to
innocent person15 - 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.

3. RIGHT OF PRIVATE DEFENCE EXTENDING TO CAUSING DEATH

Section100. When the right of private defence of the body extends to causing death16

No state has so much resource to place a police officer with every individual. Thereby, the
Indian Penal Code recognizes an individual’s right to protect body and property of himself and
any other person against an impending threat when the state aid cannot be obtained and th us
provides the right of Private Defence to protect them under section 96 - 106 of Indian Penal
Code (IPC)17. This right is provided to ensure the safety of the citizens and a person is not
responsible in law for his actions. However, this right can only be exercised when the
circumstances justifies it and not otherwise. There has to be a reasonable apprehension of the
threat although actual injury may or may not happen. Also, this right is subject to restrictions
given under Section 99 of the IPC18. In certain situations, in cases of private defence of body,
this right extends to causing death of the person who poses such a danger and this is recognized
by section 100 of the IPC. The right of Private Defence of the body extends to causing of
voluntary death of the assailant in seven circumstances that have been enumerated below.
However, this right can only be exercised and must be guided by restrictions given under S.99
IPC. Also, the assault under the six circumstances is not simply an assault but an aggravated
form of assault. It means assault coupled with any other wrongful act.

15
Id
16
Id
17
Ratanlal & Dhirajlal, “THE INDIAN PENAL CODE” (34th Ed. 2014, Lexis Nexis)
18
K.D. Gaur, COMMENTARY ON THE INDIAN PENAL CODE 298 (2nd Ed. 2013, Lexis Nexis)

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• Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;
• Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise
be the consequence of such assault.
• An assault with the intention of committing rape
• An assault with the intention of gratifying unnatural lust
• An assault with the intention of kidnapping or abducting
• An assault with the intention of wrongfully confining a person, under circumstances which
may reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release
• An act of throwing or administering acid or an attempt to throw or administer acid which
may reasonably cause the apprehension that grievous hurt will otherwise be the consequence
of such act.19

To invoke the provisions of sec 100, I.P.C., four conditions must exist: 20
• That the person exercising the right of private defense must be free from fault in bringing
about the encounter.
• There must be present 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 the life.

Moreover before taking the life of a person four cardinal conditions must be present: 21
(a) the accused must be free from fault in bringing the encounter;
(b) presence of impending peril to life or of great bodily harm, either real or apparent as to
create an honest belief of existing necessity;
(c) no safe or reasonable mode of escape by retreat; and
(d) a necessity for taking assailant’s life.

Cases are used to analyse the right of private defence under S.100 and therefore each
circumstance is further explained with the help of relevant case laws.

19
Criminal Law (Amendment) Act, 2013 (13 of 2013), India
20
https://www.srdlawnotes.com/2017/05/right-of-private-defence-section-96-to.html.
21
Balbir Singh vs. State Of Punjab, AIR 1957 SC 216.

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Yogendra Moraji vs. State22
The supreme court through Sarkaria, J. 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 created quite a confusion in the law 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. This
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.

Vishvas Aba Kurane vs State of Maharashtra23

To claim a right of private defence extending to voluntary causing death, the accused must
show that there were circumstances giving rise to reasonable grounds for apprehension that
either death or grievous hurt would be caused by him.

Darshan Singh v. State of Punjab24

The accused just has to show that he was faced with a reasonable apprehension and whether
the apprehension was reasonable or not, is to be determined from the facts and circumstances
of each case. Also, there could be no laid down test to measure whether the force used is
appropriate. It has to be judged subjectively and no “reasonable man” concept is there. These
principles were laid down.

Corollary To Section 100

Section101. When such right extends to causing any harm other than death25
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 death.

22
AIR 1980 SC 660.
23
AIR 1978 SC 414
24
AIR 2010 SC 1212
25
supra note 6

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Mohinder Pal Jolly v. State of Punjab26
Workers of a factory threw brickbats 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.

Section 103. When the right of private defence of property extends to causing death27
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 a 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 right of
private defence is not exercised.

Jassa Singh v. State of Haryana28

The Supreme court held that the right of private defence of property will 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 Sec 103.

Corollary To Section 103

Section104. When such right extends to causing any harm other than death29 - 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

26
1979 SCR (2) 805
27
supra note 6
28
AIR 2002 SC 520
29
supra note 6

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causing of 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.

V.C.Cheriyan v. State of Kerala30

The three deceased person along with some other person had illegally laid a road through the
private property of a Church. A criminal case was pending in court against them. The three
accused persons belonging to the Church put up barricades across this road with a view to
close it down. The three deceased who started removing these barricades were stabbed to
death by the accused. The Kerela High Court agreed that the Church people had the right of
private defence but not to the extent of causing death of unarmed deceased person whose
conduct did not fall under Section 103 of the Code.

4. CONCLUSION AND SUGGESTIONS

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 danger31.

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.

30
1982 CriLJ 2071
31
http://www.jdsupra.com/legalnews/right-of-private-defense-in-india-07062/.

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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-defence32. 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 33. 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.

BIBLIOGRAPHY:

The researcher has consulted following sources to complete the rough proposal:

1. Books:
• Ratanlal & Dhirajlal, “THE INDIAN PENAL CODE” (34th Ed. 2014, Lexis Nexis)
• P S A Pillai & K I Vibhute, “Criminal Law” (13th Ed. 2017, Lexis Nexis)
• K.D. Gaur, COMMENTARY ON THE INDIAN PENAL CODE (2nd Ed. 2013, Lexis Nexis).

2. Websites:
• India Law Journal
• Legal Service India
• Manupatra
• SSC Online
• Lawctopus

32
scienceblogs.com/deltoid/2000/01/01/selfdefence/
33
http://www.legalserviceindia.com/article/l470-Private-Defence.html.

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