Nothing is an offence which is done in exercise of the right of private defence. Thus, right of a private defence is available against all persons, except against those which are mentioned in Section 99 and Section 97 defines that this right is available, under the restrictions contained in Section 99, to defend.
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First:
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His own body and the body of any other person, against any offence affecting the human body.
Secondly:
The property, whether movable or immovable property 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.
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, every person has the same right of private defence against that act which he would have if the act were that offence (Section 98).
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Section 96 lays down the basic law, viz., nothing is an offence which is done in the exercise of the right of private defence. Section 97 defines what the right of private defence is. The right of private defence is of two kinds: —
(i) Private defence of person or body against offences affecting the human body;
(ii) Private defence of property against theft, mischief, robbery or criminal trespass or attempt to commit any of these offences.
The first condition for the right of private defence is that there should be an offence against which the right may accrue. The right will not accrue against a lawful act or an act which is a civil wrong. Thus, there is no right of private defence against civil trespass but such a right arises when the trespass is criminal. The reason is simple. Against a civil trespass there is time to have recourse to public authorities or seek the intervention of Courts for redress.
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The offence, against which the right is exercisable, may be classified as (i) offences against person, and (ii) offences against property which may be the person (i.e., body) or property of one’s own self or of another and the property may be movable or immovable.
Offences against property against which the right is exercised have been specified but there is no specification so far as offences against the human body are concerned, so that any offence which is an offence against the human body or an attempt to commit it, as will be shown hereafter, will attract the exercise of the right of private defence.
The offences against the human body are comprised in Chapter XVI of the Penal Code. The right of private defence of property is available against only theft, mischief, robbery and criminal trespass or attempt to commit any of these offences; the right would be exercisable against the simple as well as the aggravated forms of these offences.
An attempt to commit an offence may necessitate the exercise of the right of private defence whether of person or property. It is necessary that there should be an actual commission of the offence in order to give rise to the right of private defence.
A reasonable apprehension that an offence is likely to be committed and that it cannot be avoided otherwise than by the exercise of the right of private defence would be enough. 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 (Section 102) to invite the exercise of that right.
A person has the right, as stated above, not only to defend his own body but also the body of any other person. A person who sees a woman being assaulted can interfere to save the woman and cut another if necessary.
On coming to know about the assault on one of the accused and his companions, some other person came for their protection, they were within their right of private defence, subject of course to the restriction contained in Section 99.
The complainant party armed with iron rods trespassed into the paddy field of the accused with a view to reap and take away the crop. While doing so they beat the sister and daughter of the accused with iron rods.
The accused who was working in the field with a dao in his hand seeing this came there and gave only one blow on the head of the deceased ultimately resulting in his death. It was held that the accused was not liable for causing the death of the deceased as what he did was done in exercise of the right of private defence of person and property. As a general rule the right of one to defend another is co-extensive with the right to defend himself.
The right of defence is not limited to the particular person assailed; it includes all who are under any obligation, even though merely social and not legal to protect him.
There is no right of private defence against lawful apprehension or arrest. Since such an apprehension is not an offence. A thief cannot claim the right against his pursuers as it would not amount to an offence affecting the human body while all means necessary to effect the arrest of the thief could be used.
If a thief attacks his pursuers, a counter-attack to repulse it would be an exercise of the right of private defence. There is no private defence against a person who is acting in execution of law or of some legal process, as also against a person who is defending himself. Unlawful apprehension is an offence affecting the human body.
Adultery is not an offence affecting the human body. It does not give the husband a right of private defence against the adulterer, injury or death caused to him by the husband would not be an act done in exercise of the right of private defence.
The right of private defence of person arises when any of the offence mentioned in Sections 299 to 377 is contemplated as indicated by the words “offences affecting the human body” used in both Sections 97 and Chapter 16 of the Code.”
The second kind of private defence is that of property. Every person has the right to protect himself in the actual enjoyment of his rights to property unless the case be such that Section 99 applies. The right of private defence arises only when certain specified offences are committed or attempted to be committed.
The right of private defence under Section 97 also embraces the protection of the property of another -person against such offences. There is difference between private defence and self-defence. Private defence is wider in comparison to self-defence.
Private defence is a statutory right having certain limitations whereas self-defence is not a statutory right. Private defence is not available against all offences but can be exercised against certain offences explained under Sections 96 to 106.
Such restriction is not applicable in case of self-defence. Private defence is available only in criminal matters where as self-defence is available in civil matters. No man has the right to take the law into his own hands if by any means he can have his protection or justice to himself otherwise, that is, from the State.
The right of private defence does not arise if there is time to have recourse to the protection of the public authorities. Private defence does not replace the defence or protection provided by the State but is only a supplement to it when State protection cannot either be obtained in time or is not adequate to meet the invasion as in a riot or dacoity a person does not lose his right of private defence and can exercise it to save person and property from the offenders, even while the police is present on the scene and actively busy giving protection.
It has been pointed out earlier that the right of private defence is available only against offences. However, there are cases where though the act of a person does not amount to an offence due to attacker’s incapacity to commit an offence (as provided in Sections 82, 83, 84, 85, etc.) the right of private defence has been given because in attacks by such persons the danger to person or property exists to the same extent.
Thus, even if an act is not offence by reason of—
(1) The youth of its doer (Section 82),
(2) The want of maturity of understanding of the doer (Section 83),
(3) The unsoundness of mind of the doer (Section 84),
(4) The intoxication of the doer (Section 85),
(5) Any misconception on the part of the doer (Sections 76 and 79),
The right of private defence shall operate to the same extent as it would have done if the act were an offence.
In judging the occasion for the exercise of the right of private defence the exceptions which make the offence non-penal are ignored. In fact the right would have lost much of its value if it was not allowed against the acts of such persons. The right prevails irrespective of the state of the mind of the wrongdoer or his liability to or exemption from penal liability.