The Right to Private Defence (Sections 96-106)
If a person does an act while exercising his right of private defence, his act would be no offence (Section 96). Right of private defence is based upon the instinct of self-preservation. This instinct is vested in every human being and has been recognised by the law in all the civilized countries. The need for self-preservation is rooted in the doctrine of necessity.
Common law has always recognised the right of a person to protect himself from attack and to act in defence of others. In this process, he can inflict violence on another, if necessary. The person who is about to be attacked does not have to wait for the assailant to attack first. The right of private defence of people is recognised in all free, civilised and democratic societies within certain reasonable limits. Those limits are dictated in two considerations :
i. Every member of the society can claim this right
ii. That the state takes responsibility for the maintenance of law and order
This right of private defence is preventive and not punitive. Supreme Court said that the right of private defence is a defensive right surrounded by the law and is available only when the person is able to justify his circumstances. This right is available against an offence and therefore, where an act is done in exercise of the right of private defence, such an act cannot go in favour of the aggressor. In the case of Darshan Singh v. State of Punjab, the Supreme Court gave the following principles to govern the ‘right to private defence’
“All the civilized countries recognise the right of private defence but of-course with reasonable limits. Self-preservation is duly recognized by the criminal jurisprudence of all civilized countries. The right of private defence is available only when the person is under necessity to tackle the danger and not of self-creation.”
Only a reasonable apprehension is enough to exercise the right of self-defence. It is not necessary that there should be an actual commission of the offence to give rise to the right of private defence. It is enough if the accused apprehended that an offence is likely to be committed if the right of private defence is not exercised.
The right of private defence commences as soon as a reasonable apprehension arises and continues till the time such apprehension exists. We cannot expect a person under assault to use his defence in a step by step manner. In private defence, the force used by the accused must be reasonable and necessary for the protection of the person or property.
If the accused does not plead self-defense, the court can consider the chances of the existence of such defence depending upon the material on record. There is no need for the accused to prove beyond reasonable doubt that the right of private defence existed. Under the Indian Penal Code the right of private defence exists only against an offence.
If a person is in imminent and reasonable danger of losing his life or limb; he may exercise the right of self-defense to inflict any harm which can extend to death on his assailant.
Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence.
The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend.
The right of private defence has to be exercised directly in proportion to the extent of aggression. There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact.
In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea. Certain factors need to be kept in mind in considering the act of private defence:
If there was sufficient time for recourse to public authorities or not
If the harm caused was more than what was necessary to be caused or not
If there was a necessity to take such action or not
If the accused person was the aggressor or not
If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property.
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