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Right of self defense under the Indian penal code

Submitted by asandil on Tue, 10/27/2020 - 14:51

Law has been really generous for giving us the right of private defense. On one hand, the law suggests that we cannot do any wrong. We cannot kill someone. But on the other hand, the law suggests that if that other person is trying to kill you or if someone is trying to harm you, then whatever you do to defend yourself for that particular act alone, you will not be held guilty. Therefore, any act done so as to protect yourself and you did so as to defend yourself, for that particular act you wont be held guilty and that would be covered under this act.

The right of private defense is being covered from Section 96 to 106. It has been clearly stated under Section 96 that nothing is an offense which is done in the exercise of right of private defense. So defending yourself and you do an act so as to defend yourself. Nothing would be considered as an offense, as clearly stated under 96. You must keep in mind that this is a right of private defense is available only when there is a reasonable apprehension of receiving an injury.

Under Section 97, which says that every person has a right to defend his own body or the body of another person or to the property (both movable or immpvable) of himself or another persons. Everyone has the right to defend the property against an act which is an offense falling under the definition of theft, robbery, mischief or criminal trespass, or even an attempt to do all the above things. In this case, a person has the right to defend the property, however, of himself or of any other person.

Next, Section 98, The right of private defense of you shall not be effected in any circumstance, have given certain conditions or even under these conditions, the right of the person to exercise the right of private defense will not cease.
1. By the reason of youth.
2. The want of maturity, of understanding.
3.  The unsoundness of mind, the intoxication of the person doing that act.
4.  By reason of any misconception on the part of the person.

Now section 99 states, certain conditions where the right of private defense is not available.
1. Against the acts of a public servant acting in good faith.
2. Against the acts of the those acting under the authority or direction of a public servant.
3. Where there is sufficient time for recourse to public authorities.
4. The quantum of harm of that may be caused shall in no case be in excesses.

Now, next section 100 and it says that while you are defending yourself, if you cause the death of the person, it is justifiable, but it is justifiable only when it falls under these conditions.
1. Assault - it leads to the apprehension that the death will be caused.
2. Assault - it leads to the apprehension that grievous hurt will be caused.
3. Assault - if a person is committing a rape or an assault is done with the intention of committing rape.
4. Assault - if assault is done with the intention of kidnapping or abducting someone.
5. Assault - with the intention of gratifying, unnatural lust.
6. Assault -  Wrongfully confining a person.
7. Act of throwing or administering acid, which may reasonably cause the apprehension of grievous hurt.
So in all these cases, it is justifiable to cause the death of that other person.  And he/she won't be charged for murder under Section 302 .

 

Section 101:

Section 101 provides that, if the offence be not of any of the description enumerated in Section 100; the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend to the voluntary causing to the assailant of any harm other than death.

Sections 101 and 104 state that voluntarily causing death will not be protected unless all provisions of Sections 100 and 103 are present.

 

Section 102:

This section deals with two very important aspects of the right of private defence of body – at what point of time does the right commence and how long does it continue. Regarding the first aspect the section says that the right commences at that point of time when a reasonable apprehension of danger to the body arises either from an attempt to commit an offence on the body or from a threat to commit such offence even though in either of these cases the offence itself may not have been committed.


Section 103 is similar to Section 100.  Section 100 was talking about the right of private defense of body extends to causing death. 103 says when right of private defense of property extends to causing death. it is justifiable only when it falls under these conditions.
1 . Robbery
2. House Breaking by Night
3. Mischief by fire
4. House
Trespass

Section 104:

This section is a corollary of section 103. Here also the section specifically states that the restrictions mentioned under section 99 of the Code shall have an overriding influence on this right. 

Section 105:

This section is analogous to Section 102, and indicates when the right of defence of property commences and till that period it continues. In case of theft the right of private defence of property is put to an end by the successful retreat of the thief, if the thief is running away with the property, he cannot be said to have retreated.

Section 106:

This section removes an impediment in the right of private defence. The impediment is the doubt in the mind of the defender as to whether he is entitled to exercise his right even when there is a possibility of some innocent persons being harmed by his act. The section says that in case of an assault, reasonably causing an apprehension of death, if the defender is faced with such a situation where there exists risk of harm to an innocent person, there is no restriction on him to exercise his right of defence and he is entitled to run that risk.

The DGP of Haryana, Dr. K. P. Singh in a press conference said that if a man found someone harassing a woman, he or the woman should murder him! There would be no action taken against the murderer! This news spread like wildfire and this was not seen in the highest regards as it was directly provoking murder but actually he was trying to talk about self defence law.