Right Of Private Defence : Judicial Interpretation

A PROJECT ON

RIGHT OF PRIVATE DEFENCE TO BODY AND PROPERTY

SUBJECT:CRIMINAL LAW I

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

SUBMITTED TO:

FR. PETER LADIS

S UBMITTED BY:

ARUNABH SHARMA
ROLL NO. 725 , 3RD SEM

Right Of Private Defence : Judicial Interpretation

ACKNOWLEDGEMENT

I feel myself highly delighted, as it gives me incredible pleasure to present a

research paper on RIGHT

OF PRIVATE DEFENCE TO BODY AND PROPERTY.

I would like to enlighten my readers regarding this topic and I hope I have
tried my best to pave the way for bringing more luminosity to this topic.

I am grateful to my faculty FR. PETER LADIS who has given me an idea

and encourage me to venture this project. I would like to thank librarian of
CNLU for their interest in providing me a good back up material

At

finally

yet

importantly

would

INCOMMENSURABLE support.

like

to

thank

my

parents

for

Right Of Private Defence : Judicial Interpretation

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:

The aim of the project is to present a detailed study of RIGHT OF PRIVATE
DEFENCE : JUDICIAL INTERPRETATION in relation to CRIMINAL LAW I .

SCOPE AND LIMITATIONS:

Though this is an immense project and pages can be written over the topic but
because of certain restrictions and limitations I was not able to deal with the
topic in great detail.

SOURCES OF DATA:
The following secondary sources of data have been used in the project1

Articles

Books

Websites

METHOD OF WRITING:
The method of writing followed in the course of this research paper is primarily
analytical.

METHOD OF RESARCH:
The research work of this project is based on doctrinal method.

MODE OF CITATION:
The researcher has followed a uniform mode of citation throughout the course of
this research paper.

Right Of Private Defence : Judicial Interpretation

TABLE OF CONTENTS
ACKNOWLEDGEMENT
RESEARCH METHODOLOGY

CHAPTERS:
1 INTRODUCTION---------------------------------------------------Pg. 5-7.

2 PRIVATE DEFENCE OF BODY AND OF PROPERTY--------Pg. 8-9.

3 PRIVATE DEFENCE AGAINST DEADLY ASSAULT WHEN THERE IS

RISK OF HARM TO INNOCENT PERSON----------------------Pg. 9.

4 EXTENT OF RIGHT TO PRIVATE DEFENCE TOWARDS BODY Pg. 1014.

5 EXTENT OF RIGHT TO PRIVATE DEFENCE TOWARDS PROPERTY

---------------------------------------------------------------------Pg. 14-17.

6 EXCEPTION TO RIGHT OF PRIVATE DEFENCE-----------Pg. 18-21.

7 CONCLUSION----------------------------------------------------Pg. 22-23.

Right Of Private Defence : Judicial Interpretation

APPENDICES:
BIBLIOGRAPHY

INTRODUCTION
Right of Private Defence is the only right conferred to the people under the Indian Penal
Code, 1860. Section 96 to 106 codifies the entire law relating to private defence of person
and property including the extent of and limitation to exercise such right. The right of private
defence is now recognised in every free, civilized and democratic society. The right is,
however, preventive and not punitive. With this background the provisions of Sections 96106, dealing with the right of private defence, are to be construed. The fascicle of Sections 96
to 106 codify the entire law relating to right of private defence of person and property
including the extent of and limitation to exercise of such right. The law relating to private
defence is dealt with in the Penal Code in Sections 96 to 106. It is a right inherent in man and
is based on the premise that the foremost duty of man is to protect him. He would be justified
in resisting an attack by using such degree of force as is necessary and also to prevent its
repetition. The other consideration is that though it is the duty of the State to protect its
people, yet, since it cannot possibly post a policeman at every corner, it encourages its
citizens to protect themselves when attacked. Situations often arise when the ready help of
the State is not available and to meet such exigencies, the law has given the right of private
defence to every individual. The right of self-defence is a very valuable right with a social
purpose.The law does not require a law-abiding citizen to behave like a coward when
confronted with an imminent unlawful aggression. There is nothing more degrading to the
human spirit than to run away in face of danger. The right is designed to serve a social
purpose and deserves to be fostered within the prescribed limits.
Commenting on the right of private defence in Munney Khan v. State of M.P. the
Supreme Court said:
''The right of private defence is codified in Sections 96 to 106. IPC, which have all to be
read together in order to have a proper grasp of the scope and the limitations of this right.
By enacting these sections in the Code the authors wanted to except from the operation of
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Right Of Private Defence : Judicial Interpretation

its penal clauses, classes of acts done in good faith for the purpose of repelling unlawful
aggression. This right is available against an offence and therefore, where an act is done
in exercise of the right of private defence such act cannot give rise to any right of private
defence in favour of the aggressor in return. This would seem to be so even if the person
exercising the right of private defence has the better of his aggressor provided of course
he does not exceed his right because the moment he exceeds it he commits an offence.
There is also no right of private defence in cases where there is time to have recourse to
the protection of public authorities. The right of private defence is essentially a defensive
right circumscribed by the statute available only when the circumstances clearly justify it.
It should not be allowed to be pleaded or availed of as a pretext for a vindictive,
aggressive or retributive purpose. According to Section 97 this right vests even in
strangers for the defence of the body and property of other persons against offences
mentioned therein. The Courts have therefore to be careful in seeing that no one on the
mere pretext of the exercise of the right of private defence takes side in a quarrel between
two or more persons and inflicts injuries, on one or the other. In a case when two parties
are having a free fight without disclosing as to who is the initial aggressor it may be
dangerous as a general rule to clothe either of them or his sympathiser with a right of
private defence. If however one of them is shown to be committing an offence affecting
human body then that would of course seem to give rise to such a right. If there is no
initial right of private defence then there can hardly be any question of exceeding that
right."
In Ananta Deb Singha Mahapatra v. State of West Bengal, 1 it was held that section 96
does not define the expression right of private defence. It merely indicates that nothing is
an offence which is done in the exercise of such right. Whether in a particular set of
circumstances, a person legitimately acted in the exercise of right of private defence is a
question of fact to be determined on the fact and circumstances of each case. No test in the
abstract for determining such a question can be laid down.
In Sekar v. State of Rajasthan,2 the apex Court held that in determining this question of
fact, the Court must consider all the surrounding circumstances. It is not necessary for the
accused to plead in so many words that he acted in self-defence. If the circumstances show
1 AIR 2007 SC 2524.
2 2003 SCC (Cri) 16.
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Right Of Private Defence : Judicial Interpretation

that the right of private defence was legitimately excercised, it is open to the Court to
consider such a plea. In a given case, the Court can consider it even if the accused has not
taken it, if the same is available to be considered from the material on record.
This right of private defence is based on the cardinal principal of self-help. The vigilance
of law enforcing agency can never make up for the vigilance of each individual on his own
behalf. As stated in Mahandi v. Emperor,3 the law does not require a citizen, however lawabiding he may be, to behave like a rank coward on any occasion.
In Rahmat Ali v. State,4 the Court held that, the right of self-defence as defined in Secs.
96 and 97 of the Indian Penal Code, contemplates that if a man is attacked he would be
justified in the eye of law if he holds his ground and delivers a counter-attack provided
always that the injury which he inflicts in self-defence is not out of all proportion to the
injury with which he was threatened. There is no right of private defence under this code
against an act which is not in itself an offence under it.5
In Yogendra Morarji v. State of Gujarat,6 the apex Court laid down the principles as to
right of private defence of body. They are as follows:(a) There is no right of private defence against an act which is not in itself an offence
under the code;
(b) The right commences as soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit some offence. Although the offence may
not have been committed, it is co-terminus with the duration of such apprehension;
(c) It is defensive and not a punitive or retributive right. Therefore, in no case more harm
than is necessary to inflict in defence is permissible;
(d) The right extends to killing of the actual or potential assailant when there is a
reasonable and imminent apprehension of the crimes enumerated in the six clauses of
section 100 of the Indian Penal Code.

3 51 Cr. L.J. 654 (Lah).

4 AIR 1953 All. 338.
5 Chandra Bhan v. State, AIR 1954 All 39.
6 AIR 1980 SC 660.
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Right Of Private Defence : Judicial Interpretation

In State of U.P. v. Ram Swarup, 7 the Court held that, when the accused himself goes
with a gun to attack the victim and the victim in self-defence re-attacks the accused, by
killing the victim, the accused cannot plead right of self defence.

PRIVATE DEFENCE OF THE BODY AND OF

PROPERTY
Section 97 proceeds to divide the right of private defence into two parts: the first part dealing
with the right of private defence of person, and the second part dealing with the right of
private defence of property. The right of private defence only arises against acts which
constitute an offence except in certain specified circumstances. The right of private defence
of person extends to acts which amounts to an offence affecting the body of the person
exercising the right or the body of any other person. The right of private defence of property
covers cases of acts which are offences falling under the definition of theft, robbery,
mischief, or criminal trespass or an attempt to commit any of these. This section
recognises right of a person not only to defend his own or anothers body but to defend his
own or anothers property even against an attempt to inflict any offensive act against the
property.
In Ram Saiya v. Emperor,8 the use of the words offences affecting the human body
both in Sec. 97. which gives the right of private defence, and in the beginning of Chapter XVI
of the Indian Penal Code makes it clear that the right of private defence of person arises in
favour of a person in cases when any of the offences mentioned in Secs. 299 to Sec. 377 is
contemplated to be committed against the person who seeks to exercise that right.
In Gurbachan Singh v. State of Haryana, 9 it was held that apart from the fact that
the appellant neither took up either a plea of private defence or of a mistake of fact or of
7 AIR 1974 SC 1570.
8 AIR 1948 All. 205.
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Right Of Private Defence : Judicial Interpretation

accident, no right of private defence can exist against an unarmed and unoffending individual
who was trying to get up. Even if the deceased had managed to get up and was standing at the
time when the fatal injury was inflicted upon him there being no suggestion, even in the
course of cross-examination of witnesses, to indicate that he lifted his little finger against the
appellant, he had no justification whatsoever for thrusting his spear into deceaseds chest.
In Bhagwan Singh v. State of Punjab,10 the apex Court said, under section 97 every
person has the right subject to the restriction contained in section 99 to defend his properties
against any attack which is an offence falling under the definition of theft, robbery, mischief
or criminal trespass. This right is not available to an aggressor.
In Ram Rattan v. State of U.P.,11 the Court held that a true owner has every right to
dispossess or throw away a trespasser, while the trespasser is in the act or process of
trespassing and has not accomplished his act of possession. But this right is not available to
the true owner if the trespasser has been successful in accomplishing his possession to the
knowledge of the true owner.

PRIVATE DEFENCE AGAINST DEADLY ASSAULT

WHEN THERE IS RISK OF HARM TO INNOCENT
PERSON.

Section 106 of the Penal Code provides that if there is reasonable apprehension of death, the
defender, while exercising his right of private defence, can take the risk of harm to an
innocent person if the right cannot be effectually exercised without taking such a risk. It is a
case of extreme necessity, in which a person is entitled to run the risk of harming innocent
persons in order to save himself from mortal injury.

9 AIR 1975 SC 496.

10 1994 SCC (Cri) 1473.
11 AIR 1977 SC 619.
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Right Of Private Defence : Judicial Interpretation

In Ishak v. State of Madhya Pradesh,12 the Court said that where there is nothing in
the evidence to indicate that any one of the group of people which was following the
respondent was armed with any deadly weapon it cannot be said that there was reasonable
apprehension of death. Therefore, there was no occasion for the deceased to exercise his right
in the manner in which it would harm the deceased.

EXTENT OF RIGHT TO PRIVATE DEFENCE

TOWARDS BODY

(1) EXTENDING TO CAUSE DEATH

Section 100 IPC, provides when the right of private defence of the body extends to causing
death:
(a) If the assault reasonably causes the apprehension that death or grievous hurt will
otherwise be the consequence.
(b) The assault is made with the intention of committing rape or gratifying unnatural
lust or with the intention of kidnapping or abducting.
(c) The assault is made with the intention of wrongfully confining the person with the
apprehension that he will be unable to have recourse to public authorities for his
release.

12 (1976) 25 Jab. LJ 351.

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Right Of Private Defence : Judicial Interpretation

This right under Section 100 will be subject to the restrictions under Section 99. In
determining whether there was an apprehension of death or grievous hurt, the nature of
assault and the type of weapons used would be considered.
In Paramananda Mahakud v. State,13 the Court said, Under Sec. 100 of the Indian
Penal Code, the right of private defence of body extends to causing of death if there is
reasonable apprehension that grievous hurt would be the consequence of the assault.
In Jai Dev v. State of Punjab, 14 the apex Court held that the law of private defence does
not require that the person assaulted or facing an apprehension of an assault must run away
for safety. It entitles him to defend himself and law gives him the right to secure his victory
over his assailant by using the necessary force. This necessarily postulates that as soon as the
cause for the reasonable apprehension has disappeared and the threat has either been
destroyed or has been put to rout, there can be no occasion to exercise the right of private
defence. If the danger is continuing, the right is there; if the danger or the apprehension about
it has ceased to exist, there is no longer the right of private defence.
In Vishwanath v. State of U.P.,15 the apex Court said the right of private defence arises
against the human body, namely, assault, and if the assault of an aggravated nature, as
enumerated in Sec. 100 of the Indian Penal Code the section provides that the right extends
even to the causing of death. In describing the nature of the assault some clauses use words
which themselves denote offences such as grievous hurt, rape, kidnapping,
wrongfully confining : but this does not mean that the intention with which the assault is
committed must always be an offence in itself while in other clauses the words used to
describe the intention do not themselves amount to an offence under the Indian Penal Code.
In Bhagwan Singh v. State of Madhya Pradesh, 16 the Court held that the right of private
defence of person, where there is real apprehension that the aggressor might cause death or
grievous hurt to the victim, could extend to the causing of death also, and it is not necessary
13 (1970) 2 Cr. L.J. 931.
14 AIR 1963 SC 612.
15 AIR 1960 SC 67.
16 2002 (4) All India Cr.L.R. 548.
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Right Of Private Defence : Judicial Interpretation

that death or grievous hurt should actually be caused before the right could be exercised. A
mere reasonable apprehension is enough to put the right of private defence into operation.
The question whether a person having a right of private defence has used more force than is
necessary, would depend on the facts and circumstances of a particular case.
In Wassan Singh v. State of Punjab,17 the Supreme Court observed, it is obvious that if
an accused with an intention to kill his victim fires a shot at him which misses the target and
hits any other innocent person fatally he would remain guilty of an offence of murder but if
the accused had no such intention and was protected by right of private defence under the
situation and circumstances in which it could extend to even causing death of assailant as laid
down by Sec. 100 of the Indian Penal Code and if in exercise of that right of private defence
the blow fatally falls on an innocent person the action would still remain protected under Sec.
100 of the Indian Penal Code. The reasonable apprehension of the accused that grievous hurt
will be caused to him must be judged from the subjective point of view of the accused and
cannot be subjected to microscopic and pedantic scrutiny.
In Bhagwan Swaroop v. State of Madhya Pradesh,18 the Supreme Court held that a
person said facing with imminent threat of being assaulted is not expected to weigh in
golden scales the exact force require to repeal the danger. A lathi is capable of causing a
simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or
grievous is of no consequence. It is the scenario of a father being given lathi blows which has
to be kept in mind and in such a situation a son could reasonably apprehend danger to the life
of his father and his firing a gun-shot at that point of time in defence of his father is justified.
In Gurdeo Singh v. State of Rajasthan,19 the deceaseds water course was leading to the
field of accused. On the objection of accused instead of refraining himself to do so, deceased
gave a Kassia blow to the accused from his sharp side on his head causing incise wound to
bone deep, then accused was right to grapple with him in order to dis-arm the deceased.
Accused as more than 60 years old while the deceased was about 35 years old. It was held
that accused has not exceeded his right of private defence in causing injuries to the deceased.
17 1996 SCC (Cr.) 119.
18 1992 East. Cr.C. 457 (SC).
19 1996 Cr.L.J. 1270.
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Right Of Private Defence : Judicial Interpretation

(2) EXTENDING TO CAUSING HARM OTHER THAN DEATH
Section 101 of the Penal Code provides that in the absence of the circumstances laid down in
Section 100, the right of private defence is limited to causing of any harm other than death.
This right, again, is subject to the exceptions that will be dealt with under Section 99.
It also provides that if the offence be not of any of the descriptions mentioned in Sec. 100, the
right of private defence of body does not extend to the voluntary causing to the assailant of
any harm other than death. Under 101, therefore, a person is entitled to exercise his right of
private defence of the body, as against any assault other than the firstly and secondly of Sec.
100; to the extent of causing grievous hurt. If, after the commission of an assault of a simple
or grievous nature, there is in any case, no further apprehension of assault, occasion for the
exercise of the right of private defence of the body should not arise.
In Charungu Boipari v. State,20 the Court said, Under Sec. 101 of the Indian Penal
Code, if the offence which occasions the exercise of the right be not one of those enumerated
in Sec. 100 of the Indian Penal Code, every person has a right to defend his own body and the
body of any other person against the offence affecting human body.
In Khetri Bewa v. State,21 Where, a defendant charged with murder asserts that he
killed in self-defence, his state of mind at the time of the killing becomes material, and an
important element in determining his justification or his belief in an impending attack by the
deceased.
In Munney Khan v. State of Madhya Pradesh, 22 the apex Court observed, A right of
private defence governed by Sec. 101 of the Indian Penal Code, is subject to two limitations.
One is that, in exercise of this right of private defence, any kind of hurt can be caused, but not
death, and the other is that the use of force does not exceed the minimum required to save the
person in whose defence the force is used.
(3) COMMENCEMENT AND CONTINUANCE OF THE RIGHT TOWARDS THE
BODY
20 (1996) 32 Cut. L.T. 530.
21 AIR 1952 Orissa 37.
22 AIR 1971 SC 1491.
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Section 102 of the Penal Code provides :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 so long as
such apprehension of danger to the body continues.defence commences as soon as
reasonable apprehension of danger to body arises and lasts so long as such reasonable
apprehension continues.
In State v. Jung Singh,23 the Court said, the right of private defence of the body
commences only on a reasonable apprehension of danger to the body caused by an attempt or
threat to commit an offence. There must be an attempt or threat and consequent thereon an
apprehension of danger. Thus, reasonable ground for apprehension of danger to body is an
essential requisite for exercise of the right of private defence of person.
In Deo Narain v. State of U.P.,24 the Supreme Court said, the right of private defence
is available for protection against apprehended unlawful aggression and not for punishing the
aggressor for the offence committed by him. It is a preventive and not a punitive right. The
right to punish for the commission of offences vests in the State and not in private
individuals. If after sustaining a serious injury there is no apprehension of further danger to
the body then obviously the right of private defence would not be available.
In State of Uttar Pradesh v. Ram Swarup,25 the presence of blood near the door
shows that the accused fired at the deceased when the latter was fleeing in fear of his life. It
was held that there was no justification for killing the deceased selectively. The right of
defence ends with the necessity for it. Under Sec. 102 of the India Penal Code, the right of
private defence of the body commences as soon as a reasonable apprehension of danger to the
body arise and it continues as long as such apprehension of danger continues.

EXTENT OF RIGHT OF PRIVATE DEFENCE

TOWARDS PROPERTY
23 1969 R.L.W. 301.
24 AIR 1973 SC 473.
25 AIR 1974 SC 1570.
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Right Of Private Defence : Judicial Interpretation

(1) EXTENDS TO CAUSING DEATH

Section 105 provide for the commencement and continuance of the right of private defence of
property:
(a) In case of theft, the right of private defence continues till the offender has affected his
retreat with the property or either the assistance of the public authority is obtained or
the property has been recovered.
The recapture of the stolen or plundered property is permissible if the taking and
retaking is one transaction. Recapture after interval of time, however justifiable,
cannot be deemed to be an exercise of the right of private defence of property.
(b) In case of robbery, the right continues as long as the offender causes or attempts to
cause to any person death or hurt or wrongful restraint or as long as the fear of instant
death or of instant hurt, or of instant personal restraint continues. In case of robbery,
the right of private defence of property is combined with the right of private defence
of the body and continues so long as the fear of imminent danger continues.
(c) In case of criminal trespass or mischief, the right continues so long as the offender
continues in the commission of the criminal trespass or mischief.
(d) In case of house-breaking by night, the right continues so long as the house trespass,
which is begun by such house-breaking, continues. House-breaking by night is
covered by Section 103 and extends to causing death, i.e. when house trespass is
affected by entering into any part of the house after house-breaking between dusk to
dawn.
Under Sec. 103 of the Indian Penal Code, the right of private defence of property extends, to
the voluntary causing of death in case of theft or mischief, when such theft or mischief is
committed in such circumstances as may reasonably cause an apprehension that death or
grievous hurt will be the consequences if such right of private defence is not exercised. This
section recognises the right of a person to kill a person committing offences attended with
force or surprise.
In Subramani v. State of Tamil Nadu,26 the apex Court said, it is well-settled that once
it is held that the accused had the right of private defence and reasonably apprehended that
death or grievous bodily hurt would be the consequence if the right of private defence was
26 AIR 2002 SC 2980.
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Right Of Private Defence : Judicial Interpretation

not exercised, the right of private defence of property extended under this section to
voluntarily causing the death of the aggressor.
In Jassa Singh v. State of Haryana,27 the apex Court said, the right of private
defence of property will not extend to the causing of death of the person who has 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 cause apprehension that death or grievous hurt
would be the consequences is enumerated as one of the offences under section 103.
In Abdul Kadir v. State of Assam,28 the paddy crop was ripe and ready for
harvesting and it had been grown by the accused persons. The two deceased persons and their
men had trespassed into the property and were about to harvest the paddy. Theft and mischief
were either being committed or threatened to be committed. When accosted they wanted to
forcibly commit the offence of theft and mischief and when the accused persons wanted to
exercise their right, grievous blows were given. In the facts of this case, the right of private
defence of body and property was available to the aaccused persons and in the circumstances
indicated and on the findings recorded, this right extended causing of death.
In State v. Badri,29 the Court said, the extended right to cause even death is conferred in
the case of house-trespass only when it is committed in circumstances which may reasonably
cause an apprehension that death or grievous hurt will result if such right of private defence is
not exercised.

(2) EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH

Section 104 talks about the extension of right of private defence of property to causing any
harm other than death. This section is enacted to legalize te infliction of any harm short of
27 AIR 2002 SC 520.
28 AIR 1986 SC 305.
29 AIR 1957 All 714.
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Right Of Private Defence : Judicial Interpretation

death in all cases in which the offence of theft, mischief or criminal trespass are not
aggravated in the manner described in the clause fourthly of section 103 being attended with
an attempt to cause death or grievous hurt.
In Mahabir Chaudhary v. State of Bihar,30 the Court was of the opinion that section
104 contains the bridle that right of private defence shall not cross the limit of first degree as
against acts which would remain as theft, mischief or criminal trespass.
In Francis Alfred v. State of Rajasthan,31 the Court held that, a person had every right to
defend his property and to stop the accused for uprooting the reeds, etc. which he had planted
in his field. In defending his property he can under Sec. 104 of the Indian Penal Code cause
any harm short of death.
In Nathan v. State of Madras,32 the Court held that if it does not appear that the
harvesting party is armed with any deadly weapons and there cannot be any fear of death or
grievous hurt on the part of the party of the accused under Sec. 104 of the Indian Penal Code,
their right is limited to the causing of any harm other than death.

(3) COMMENCEMENT AND CONTINUANCE OF THE RIGHT

The right of private defence of property commences with the reasonable apprehension of
danger to such property. It is lawful for a person who has seen an invasion of his right, to go
to the spot and object. It is also lawful for such person if the opposite party is armed, to take
suitable weapons for his defence. The person entitled to exercise that right can act before
actual harm is done. It is not a right of retaliation and hence he need not wait until the
aggressor has started committing the offence which occasions, the exercise of his right of
private defence.

30 AIR 1996 SC 1998.

31 1980 Cr.C. 81.
32 AIR 1973 SC 665.
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Right Of Private Defence : Judicial Interpretation

In State v. Sidhnath Rai,33 the Allahabad High Court held that hen the offence has
been committed and the property removed, a recapture after an interval of time by the owner
or the person on his behalf, however, justifiable, cannot be deemed an exercise of the right of
defence of property. The recovery which Sec. 105 of the Indian Penal Code contemplates
seems to be a recovery either immediate or made before the offender has reached his retreat.
In Amar Singh v. State of Rajasthan, 34 the Court said, the primary object of this
provision of the law appears to be that the owner of the stolen property may not be deprived
of it when the same may be recovered by the owner by using force against the thief but this
right of using force is subject to the three conditions.
In State of M.P. v. Shaligram,35 the Court said that by no stretch of argument can it
be said that any accused has any right of private defence against a person who is running
away from the scene of occurrence. The assault on him will be wholly unjustified.
In the case of State v. Bhima Deoraj,36 the deceased entered the house with the
intention of outraging the modesty of the wife of the accused and did something to manifest
that intention. The deceased was beaten by the accused with sticks. The accused continued to
beat the deceased after he had fallen down. It was held that it could not be said that after the
deceased fell down, the accuseds right of right of private defence came to an end.

33 AIR 1959 All 233.

34 AIR 1968 Raj. 11.
35 1971 Jab L.J. 292.
36 AIR 1956 Sau. 77.
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Right Of Private Defence : Judicial Interpretation

EXCEPTIONS TO RIGHT OF PRIVATE

DEFENCE
Exceptions on the exercise of the right of private defence are contained in Section 99 of the
Penal Code. Section 99 says :''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 the colour of his office, though the 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.
The right of private defence in no case extends to the inflicting of more harm than it is
necessary to inflict for the purpose of defence."
Explanation I. A person is not deprived of the right of private defence against 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 II. - 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.
From the above description it can be seen that it refers to acts of a public servant done on
their own authority and acts done under the authority or direction of superior public official.
If read with the explanation it becomes clear that the person is deprived of the right of private
defence against a public servant if19

Right Of Private Defence : Judicial Interpretation

(a) the act is done in good faith;
(b) the act was done under the colour of office, and
(c) there were reasonable grounds to establish the identity or authority of the public
servant or any person acting under the authority or direction of a public servant.
The right of self-defence can, however, be exercised(i) When the public servant reasonably causes apprehension of grievous hurt, or
(ii) when the public servant does not act in good faith, or
(iii) when the person exercising the right does not know or have reason to believe that the
aggressor is a public servant or one acting under the authority or direction of a public servant.
In Kesho Ram v. Delhi Admn.,37 the appellant obstructed the Inspectors and Peon of
Municipal Corporation when they went to seize the buffalo belonging to the appellant in the
discharge of their duty to realise the milk tax from him. He struck one of the officials on the
nose with the result that it bled and was also fractured. The appellant contended that the
recovery of tax was illegal and requirements of notice of demand being absent he had a right
of private defence. It was held that the Inspectors were acting honestly in exercise of the
powers delegated to them and their attempt to recover the tax due by seizure of the animal
was not entirely outside the law. All that could be said is that they had erred, even if sadly, in
the exercise of their powers. In these circumstances, Section 99 did confer a discretion upon
the employees of the Corporation who acted in good faith under the colour of their office.
There is no rigid rule regarding the extent to which the right may be exercised and due
allowance is to be made where the right is over exercised in the heat of the moment.
There are two more restrictions on the right of private defence. The first, according to para 3
of Section 99 is that if there is time to have recourse to the protection of public authorities,
the right of private defence will not be available. The right of self-help, when it causes or is
likely to cause damage to the person or property of another person must be restricted and
recourse to public authorities must be insisted upon. If a person prefers to use force in order
to protect property, when he could, for the protection of such property, easily have recourse to
the public authorities, the use of force is made punishable by the Indian Penal Code. No
matter what the intention of that person may be, the law says he must not use force in such a

37 AIR 1974 SC 1158.

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Right Of Private Defence : Judicial Interpretation

case. The country will be deluged with blood if an offender who could get relief by recourse
to law is allowed to take the law into his own hands.
In the case of Amjad Khan v. State,38 a riot broke out between the Sindhi and Mohammedan
inhabitants of a locality. The shops of the appellant and his brother were in the same building
and the mob looted the shop of the brother and were beating the doors of the appellant's shop
with lathis. The appellant had reasonable grounds for apprehending death or grievous hurt to
himself or his family and since effective and timely help was not available, the right of
private defence had accrued to him. The question whether there was sufficient time for
seeking protection from public authorities is determined on facts and often presents difficulty.
A person facing danger cannot be expected to consider whether there is or not sufficient time
to seek such protection. So in dealing with the question as to whether more force was used
than was necessary or than was justified by the prevailing circumstances, it would be
inappropriate to adopt tests of detached objectivity which would be so natural in a Court
room for instance, long after the incident has taken place. That is why in some judicial
decisions it has been observed that the means which a threatened person adopts or the force
which he uses should not be weighed in golden scales.
In Deo Narain v. State of U.P.,39the accused in return for a lathi blow had given a dangerous
blow with considerable force with a spear on the chest of his assailant which caused When a
blow is aimed at a vulnerable part like the head even by a lathi which may prove
instantaneously fatal, and cases are not unknown in which such a blow by a lathi has actually
proved instantaneously fatal, it cannot be laid down as a sound proposition of law that in such
cases the victim is not justified in using his spear in defending himself. In such moments of
excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing
grave aggression to coolly weigh as if in golden scales, and calmly determine with a
composed mind as to what precise kind and severity of blow would be legally sufficient for
effectively meeting the unlawful aggression i.e. his death. It was held that :
When a blow is aimed at a vulnerable part like the head even by a lathi which may prove
instantaneously fatal, and cases are not unknown in which such a blow by a lathi has actually
proved instantaneously fatal, it cannot be laid down as a sound proposition of law that in such
38 AIR 1952 SC 165.
39 AIR 1973 SC 473.
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Right Of Private Defence : Judicial Interpretation

cases the victim is not justified in using his spear in defending himself. In such moments of
excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing
grave aggression to coolly weigh as if in golden scales, and calmly determine with a
composed mind as to what precise kind and severity of blow would be legally sufficient for
effectively meeting the unlawful aggression.
The other restriction laid down vide para 4 of Section 99 is that in no case more harm should
be caused than is necessary. It is entirely a question of fact in the circumstances of a case as
to whether there has been excess of private defence within the meaning of the 4th clause of
Section 99 of the IPC. If the circumstances indicate that there was real apprehension to his
body and life, a person acting in a reasonable manner of self-defence cannot be said to exceed
the right of private defence. The right is essentially protective and it cannot be assessed as
punitive. It is not, therefore, justifiable to confine a man who was found ploughing his
neighbours land.
Similarly, if the deceased was unarmed and cutting crop under police protection, it indicated
his peaceful intention. Shooting him at close range without warning would be covered by
para 4 of Section 99. The unarmed lady without attacking anybody had simply intervened in
the melee to save her son. The accused attacked and killed her and pleaded the right of self
defence but court rejected his plea and upheld his conviction.

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CONCLUSION

Right of private defence is thus preventive and neither punitive nor vindictive and also it
should not be used maliciously, It is available in face of imminent dangers and can be used as
a shield to protect a person and property within the prescribed limits. The right can be used
not only to defend his own person or property but that of others also, Courts are also required
to take an overall view of the case and if a right of self-defence is made available from the
evidence on record, the right should not be construed narrowly as it has a social purpose. That
is why it is not available to the aggressor who seeks an attack on him by his own aggressive
attack. Similarly neither party can claim the right in case of a free fight between two warring
groups. It is so because it is not possible to determine as to who is attacking and who is
defending. The free fight started at the spur of the moment and the accused pleaded that he
joined the fight at a later stage in order to defend himself. The court ruled out his plea and
held that he was not entitled to this right.
This right is available to the accused even if he does not plead it before the court. If there is
material in evidence to indicate that in all probability the accused had used force in exercising
the right of private defence, then the accused is entitled to the benefits of this defence. The
burden of proving the defence is on the accused but if he fails to establish the same on a
balance of probabilities yet totality of facts and circumstances are still in his favour, then
court can give the benefit of this right to him.60 The accused can plead it at any stage. He can
plead it even during the trial if he has not done so during the investigation. The accused is
however, not required to prove his case beyond all reasonable doubts. Where one person of
accused party died but prosecution could not explain the injury on accused, it was held that
the accused could not be denied the right of private defence nor could it be said that they
exceeded the same. A person has a right of repelling an attack by use of such force as is
necessary but he does not have the right to come prepared for a fight and then after attacking
an unarmed victim claim the right of self-defence on being hit back by the victim or his
associate. He is not entitled to claim any right of private defence in such situations. The
burden of establishing the plea of private defence is on the accused and the burden can be
discharged by showing preponderance of probabilities in favour of that plea on the basis of
material on records. The accused can inflict injuries or cause the death of the aggressor in

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order to defend his own life. No person can put live electric wire across the passage to latrine
in order to prevent ingress of trespassers and if death of trespasser is caused due to electric
shock, the accused cannot claim the right of private defence of property.

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Right Of Private Defence : Judicial Interpretation

BIBLIOGRAPHY
1. The Indian Penal Code, 1860., Universal Law Pub., 2009.
2. Bhattacharyya T., The Indian Penal Code, 4th edn., Central Law Agency,
2004.
3. Mishra S.N., Indian Penal Code, 14th edn., Central Law Publications,
2006.
4. Ratanlal & Dhirajlal, The Indian Penal Code, 30th edn., Nagpur, Wadhwa
& Company, 2007.
5. Gaur K.D., Criminal Law: Cases & Materials, 5th edn., Lexis Nexis,
2008.
6. Gaur H.S., Indian Penal Code, 12th edn., Law Publishers (India) Pvt.
Ltd., 2005.
7. Gaur K.D., Indian Penal Code, 3rd edn., Universal Law Pub., 2006.
8. Pillai P.S.A., Criminal Law, 10th edn., Lexis Nexis, 2008.

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