PRESENT LEGAL SCENARIO OF RIGHT OF PRIVATE DEFENCE IN INDIA
Author: Khushi Bansal, I year BA.LL.B from Symbiosis Law School, NOIDA.
Every person is entitled to the right to protect himself or herself when there is danger or fear of injury. This right is vested in private defence. Private defence as the word suggests means protection of oneself or of one’s property. Defence here implies use of limited force in order to protect oneself from getting hurt. According to the law, limited force can be used and the force used should be reasonable and should be equal to the injury inflicted upon. Though law of torts is uncodified but, the provisions of private defence is given in CHAPTER-IV under Section 96-106 of the Indian Penal Code,1860.
Illustration for better understanding of this right:
X, a thief shows a rod towards T saying that he would kill T if he doesn’t handover his volet to him. T, to defend himself snatches the rod from X’s hand and hit him hard on his leg. X, though hurt was saved. Will T be liable in this case? T will not be liable in this case as the act done by T was in order to protect his life and movable property (Volet). So, this was an act of private defence on the part of T and will not be liable.
B, a 23-year-old girl was returning from her office late night. While she was walking, a man grabbed her from behind and tried to assault her. She hit the man’s head with a stone lying on the floor as a result of which the man had several injuries. Here B was not at all liable as this was an act of private defence.
NEED OF THIS RIGHT
It is necessary to protect a person or his/her property whether movable or immovable
It could also be used to protect one’s liberty
The law empowers a person to use force when required to save himself/herself from serious injury.
HISTORY OF THE RIGHT OF PRIVATE DEFENCE
This right started with Rome, Italy when in ancient times, there were two defences available for homicide i.e., excusable and justifiable. Private defence was one of the defences under justifiable defences. This was the origin of private defence.
In India, this right was introduced during colonial rule by Lord Macaulay as he was of the opinion that one should always use some amount of force if injury is inflicted upon oneself. Since then, private defence is introduced in Indian Legal System.
The law of private defence has undergone certain changes in England. In ancient England, it was absolute liability of person who protected oneself if something happens while exercising right of private defence. But, in present day England, even homicide committed as a result of private defence is justifiable.
SELF DEFENCE V. PRIVATE DEFENCE
Self-defence and private defence are sometimes used interchangeably but there is a thin line difference between the two. Self-defence means protection of the individual alone or self- protection whereas private defence means protection of oneself or one’s property or any other person or any other person’s property.
This means that self-defence is only concerned with individual itself whereas private defence is concerned with the individual as well as the protection of other person and also of property. Self-defence is a small circle within a large circle i.e., private defence.
PRESENT LEGAL SCENARIO OF PRIVATE DEFENCE IN INDIA
The right of private defence is given under Chapter-IV of Indian Penal Code, 1860 from Section 96-106. The definition of private defence is not mentioned in the IPC and so it is the discretion of courts to decide which case will come under private defence.
As per Section 96 of Indian Penal Code, no act is an offence which is done under private defence. This means that if a person has used reasonable force to get rid of more serious injury, then it is not an offence. This right, in India is available for oneself and body of other person OR person’s property or property of any other person. This property can be both movable as well as immovable property.
A question often arises in our mind that Can we use private defence against a person of unsound mind? The answer is Yes. According to Section 98 of IPC, the right of private defence is available against person of unsound mind, intoxicated person or person with any misconception. For example, A who is intoxicated attempts to kill Z. Z, under his protection hurts A with a rod. Here, Z is not liable as he was only trying to protect himself.
There are some situations where this right is not available. These are:
If an act is done by a public servant, then, defence cannot be used because it is believed to be done in good faith. But the act should not be of such a degree which can cause death or excessive hurt to a person.
An act directed by public servant
A situation where there was time to contact the public authorities.
Some cases of private defence which can even lead to the death of a person which includes assault with apprehension of death, grievous hurt, rape, kidnapping, unnatural lust, wrongful confining a person. Another right was included according to Nirbhaya Act, 2013 where if there is an act of throwing acid, and death of the person throwing it is caused, this will not be considered as an offence. This was the defences against body of a person. There are also provisions against property for which causing death will not be considered as an offence. These include robbery, mischief by fire, trespass, house breaking by night.
According to section 106, this right is also available against deadly assault even to cause harm to innocent person. For example, if there is a mob lynching of ‘B’ and B, in order to protect himself starts firing on the mob. During the firing an innocent child is hit who got mixed with the mob. In this case, as per Section 106, B will not be liable.
These are the provisions of private defence according to the present legal scenario in India.
CASE ANALYSIS OF NABIA BAI V. STATE OF MADHYA PRADESH, A CASE ON RIGHT OF PRIVATE DEFENCE
Appellant- Nabia Bai
Respondent- State of Madhya Pradesh
Bench- K Singh, R Sahai
FACTS- In this case, the accused Nabia Bai who was also the appellant in Supreme Court was working in the fields along with her mother and sister. All three of them were weeding the crops. The deceased then entered the field with a knife and attacked them. When this tussle was going on, Nabia Bai got hold of the knife and inflicted several cuts on the deceased which led to the death.
JUDGEMENT PRONOUNCED BY SC – The court held that Nabia Bai had neither intention nor motive to kill the person who attacked her family in fields. She wanted to protect herself, her mother and her sister from getting injured via knife. The judgement of the lower court which sentenced Nabia Bai to seven years of imprisonment was struck down by the Supreme Court and she was acquitted.
This was a judgement where right of defending oneself and other persons was upheld though it led to the death of the attacker. Still, Nabia Bai was acquitted by the apex court since her act was done in good faith.
After doing all the research we can conclude that one can use only reasonable force in order to defend oneself. The force used should match with the injury inflicted upon. The right to private defence is given from section 96 to 106 of the Indian Penal Code. There are several exceptions to this right and certain situation where even if death is occurred, no offence will be considered. We also saw the case of Nabia Bai where the force used led to the death of the person but the accused was acquitted since there was no intention to kill the person. One should use private defence as a shield, not a sword.
Ronald Regal, 40th US President has rightly said. “Self-defence is not only our right; it is a duty.”