RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA

TORT PROJECT WORK

TITLE: - Right of private defense in India

Submitted to:- Submitted by:-

Dr. Jaswinder Kaur Akansha Mewara

Asst. Professor of Law 21020

 BONA FIDE CERTIFICATE

This is to certify that “Right of private defense in India” is an original work of Akansha Mewara who is a
bonafide student of the Rajiv Gandhi National University of Law, Punjab.

Akansha Mewara
 ACKNOWLEDGMENT

The achievement and ultimate result of this task required a ton of direction and help from numerous
individuals and I am amazingly advantaged to have this up and down the consummation of my venture. All
that I have done is just because of such oversight and help and I would not neglect to express gratitude
toward them. I regard and express gratitude toward Dr. Jaswinder Kaur, for giving me an occasion to do the
venture work in RGNUL and giving us all help, and direction which made me complete the undertaking
appropriately. I am very grateful to her for offering such a pleasant help and direction, in spite of the fact
that he had occupied timetable dealing with the corporate issues. I owe my profound appreciation to our
undertaking guide Dr. Jaswinder Kaur, who took a sharp interest in our undertaking work and guided us
from the start, till the consummation of our venture work by giving all the fundamental data to building up a
decent framework. I am grateful to and sufficiently blessed to get consistent consolation, backing and
direction from all Teaching staff who helped us in effectively finishing our task work. I broaden my
gratitude to all the staff individuals from the IT lab and library who upheld my examination measure.

Akansha Mewara
 TABLE OF CONTENT

1. Introduction
2. Provisions in the IPC
2.1 Section 96
2.2 Section 97
2.3 Section 98
2.4 Section 99
2.5 Section 100
2.6 Section 101
2.7 Section 102
2.8 Section 103
2.9 Section 104
2.10 Section 105
2.11 Section 106
3. Judicial Approach
4. Conclusion
Bibliography
Research Methodology

The project intends to study the concept of private defense in India. It is intended to study how the law has
been framed for the citizens and what and what not may come under the ambit of private defense. For the
same purpose, a few books and online articles remained the main source of research for the project.
Although the project focuses both on civil and criminal aspects of private defense, major page-turners are
criminal aspect because of its widespread nature and bigger scope than that of civil private defense.

Research Questions

a. What is the position of private defense in India?

b. What are provisions in IPC for the right to private defense?
c. What has been the judiciary’s approach related to private defense

1. Introduction

Self-help is the principal rule of each remedial law. The right of private safeguard is totally essential for the
security of one's life, freedom, and property—a right inborn in each individual. In any case, the sort and
measure of power required/advocated in repulsing the power by another power is minutely managed by law.
Criminal law, albeit a law of corrective guidelines which doesn't supersede rights like other law, expects that
each individual should persevere even with risk and not spare a moment to shield his own body or property
or that of another. He would react with protective power to forestall certain violations, even to the degree of
causing passing. As an overall thought, the right of private defense grants people to utilize protective power
which in any case be unlawful, to fight off assaults undermining certain significant interests. Like the guard
of need, the right of private safeguard approves people to bring the law into their own hands. Nonetheless,
the main standard in this setting is that the right of private safeguard necessitates that the power utilized in
the protection ought to be vital and sensible in the conditions. However, at the times of upset state of mind,
this can't be estimated in brilliant scales. In spite of the fact that law assumes that the power utilized in
protection should all things considered be proportionate to the power expected to be repulsed or adequate to
repulse it and stay away from the anxiety thereof, it doesn't tie an individual practicing the right to say
something brilliant scales the greatness of power to be utilized. Explicit impediments are likewise been
accommodated when the right can't be legitimately practiced and furthermore the arrangement determines
plainly the cases in which the right can stretch out to the causing of death of the attacker. English Law isn't
negligent of this right. Jeremy Bentham, an English Jurist and proponent of Utilitarianism, has remarked,
“This right of defense is absolutely necessary. The vigilance of the Magistrates can never make up for
vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually
as the fear of the sum total to individual resistance.1
1
Available at http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/THE%20RIGHT%20OF
%20PRIVATE%20DEFENSE-1.pdf
It is the first duty of man to help himself. The right of self-defense must be fostered in the Citizens of every
free country. The right is recognized in every system of law and its extent varies in the inverse ratio to the
capacity of the state to protect life and property of the subject(citizens). It is the primary duty of the state to
protect the life and property of the individuals, but no state, no matter how large its resources, can afford to
depute a policeman to dog the steps of every rouge in the country. Consequently, this right has been given by
the state to every citizen of the country to take the law into his own hand for their safety. One thing should
be clear there is no right to private defense when there is time to have recourse to the protection of police
authorities. The right is not dependent on the actual criminality of the person resisted. It depends solely on
the wrongful or apparently wrongful character of the act attempted, if the apprehension is real and
reasonable, it makes no difference that it is mistaken. An act done in exercise of this right is not an offense
and does not, therefore, give rise to any right of private defense in return. The body might be one's own body
or the body of someone else and moreover, the property might be mobile or unflinching and might be of
oneself or of some other individual. Self-improvement is the main guideline of criminal law. The right of
private safeguard is totally essential for the insurance of one's life, freedom, and property. It is right
inalienable in a man. Be that as it may, the sort and measure of power is minutely controlled by law. The
utilization of power to ensure one's property and individual is known as the right of private safeguard. 2

The right of private defense has been recognized in the Indian Penal Code, 1860 under General Exceptions
in the last 11 sections of Chapter IV starting with Section 96 and up to Section 106. Section 96 recognizes
this right in a way too general sense while the remaining sections make provisions for varied forms of this
right. Section 96 provides that nothing is an offense, which is done in the exercise of the right of private
defense. The right of private defense has been clearly incorporated in the Penal Code with a purposive
scheme in mind and cannot be said to be an offense in return; rather it must proceed on the presence of a
reasonable apprehension of harm to a person or property. 3The reasonable apprehension can only be justified
if the accused had an honest belief that there is danger and that such belief is reasonably warranted by the
conduct of the aggressor and the surrounding circumstances. The right of self-defense under Section 96 is
not exhaustive. It is actually extended by the succeeding provisions of the code (Section 97-106) with
varying degrees of circumstances. This defense is clearly qualified by Section 99 which says that the right in
no case extends to the inflicting of more harm than it is necessary for the purpose of defense and forbids the
application of this defense to certain circumstances. The right is available against an offense (affecting the
human body or property, in certain 3 cases) and can be exercised by a person either himself or by any other
person on his behalf (Section 97). However, if the act is harmful in nature, but not an offense by reason of a
mistake, infancy, insanity, intoxication, etc. the right shall still remain available in the same manner as if it
were an offense (Section 98). The extent of this right to be exercised in respect of body in covered from
section 100 to 102; there are seven circumstances when a person can exercise this right to the extent of
voluntarily causing death of the assailant (Section 100); or any other harm other than causing death if the act

2
At http://www.legalserviceindia.com/article/l470-Private-Defense.html
3
Ibid
is not of any description as specified under section 100 (Section 101). 4In the mode the commencement and
continuance of this right is regulated by Section 102. Accordingly, the extent and nature of this right to be
exercised in respect of property is covered from section 103 to 105; in four types of offenses against the
property this right can be exercised to the extent of causing death of the assailant (Section 103), or any other
harm other than death in other situations (Section 104) whereby the commencement and continuance of the
right is exhaustively dealt under Section 105. There are some extremely rare but likely possible situations
where a person is so situated that he cannot exercise this right without running the risk of harming an
innocent individual, who is neither the assailant not an abettor. Section 106 takes into account such
circumstances and does not deprive a person so placed from exercising the right and running such risk.

2. Provisions in IPC

2.1 IPC Section 96. Things done in private defense:

Nothing is an offense, which is done in the exercise of the right of private defense 5. Right of private defense
cannot be said to be an offense in return. The right of self-defense under Section 96 is not absolute but is
clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm
than it is necessary for the purpose of defense. It is well settled that in a free fight, no right of private defense
is available to either party and each individual is responsible for his own acts. While it is true that law does
not expect from the person, whose life is placed in danger, to weigh, with nice precision, the extent and the
degrees of the force which he employs in his defense, it also does not countenance that the person claiming
such a right should resort to force which is out of all proportion to the injuries received or threatened and far
in excess of the requirement of the case. The onus of proving the right of private defense is upon the person
who wants to plead it. But an accused may be acquitted on the plea of the right of private defense even
though he has not specifically pleaded it. . 6

The privilege of private defense, as the name recommends, is a demonstration of protection and not of an
offense. Thus, it can't be permitted to be utilized as a safeguard to legitimize a hostility. This requires a
cautious weighing of current realities and conditions of each case to choose regarding whether the charged
had truth be told acted under this right. Suspicions with no sensible premise with respect to the blamed about
the opportunities for an assault don't qualify him for practice this right. It was held for a situation that the
distance between the attacker and the objective may have an orientation on the inquiry whether the motion
added up to attack. No exact measuring stick can be given to fix such a distance, since it relies on the
circumstance, the weapon utilized, the foundation and the level of the ache to assault and so on.

2.2 Section 97.Right of private defense of the body and of Property:-

Every person has a right, subject to the restrictions contained in Section 99, to defend- First-His own body,
and the body of any other person, against any offense affecting the human body; Secondly-The property,
whether movable or immovable, of himself or of any other person, against any act which is an offense

4
Ibid
5
The Indian Penal Code, 1860, s96
6
Supra note 1
falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit
theft, robbery, mischief for criminal trespass7.

This Section limits exercise of the privilege of private guard to the degree of supreme need. It should not be
more than needed for protecting animosity. There should be sensible trepidation of peril that comes from the
assailant as animosity. This Section isolates the privilege of private guard into two sections, for example the
initial segment manages the privilege of private protection of individual, and the second part with the
privilege of private safeguard of property. To summon the supplication of right of private protection there
should be an offense submitted or endeavored to be submitted against the individual himself practicing a
right, or some other individual. The subject of the accumulation of the privilege of the private guard,
nonetheless, doesn't rely on a physical issue being caused to the man being referred to. The privilege could
be practiced if a sensible anxiety of causing egregious injury can be set up. 8On the off chance that the
danger to individual or property of the individual is genuine and quick, he isn't needed to say something a
brilliant scale the sort of instrument and the power which he applies spontaneously. The privilege of private
safeguard stretches out not exclusively to the guard of one's own body and property, as under the English
law, yet additionally reaches out to shielding the body and property of some other individual. 9

2.3 Section 98. Right of private defense against the act of a person of unsound mind, etc : When an act,
which would otherwise be a certain offense, is not that offense, by reason of the youth, the want of maturity
of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of
any misconception on the part of that person, every person has the same right of private defense against that
act which he would have if the act were that offense.10

2.4 Section 99. Act against which there is no right of private protection:

There is no right of private guard against an act which doesn't sensible reason the worry of death or of
unfortunate hurt, whenever done, or endeavored to be done, by a local official acting in accordance with
some basic honesty under shade of his office, however that act, may not be stringently legitimate by law. 11

There is no right of private guard against an act which doesn't sensible reason the trepidation of death or of
heinous hurt, whenever done, or endeavored to be done, by the heading of a local official acting in
compliance with common decency under shade of his office, however that course may not be stringently
legitimate by law. There is no right of private guard in cases in which there is an ideal opportunity to have
plan of action to the insurance of the public specialists.12

7
Supra note5, s97
8
Supra Note 2
9
Ibid
10
Supra note 5, s98
11
Supra Note 5, s 99
12
2.5 Section100. When the right of private defense of the body extends to causing death: The right of
private defense of the body extends, under the restrictions mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to the assailant, if the offense which occasions the exercise
of the right be of any of the descriptions hereinafter enumerated, namely:-- First-Such an assault as may
reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly-
Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the
consequence of such assault; Thirdly-An assault with the intention of committing rape; Fourthly-An assault
with the intention of gratifying unnatural lust; Fifthly-An assault with the intention of kidnapping or
abducting; Sixthly-An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.13

2.6 When such right extends to causing any harm other than death (Section 101) If the offense be not
of any of the descriptions enumerated in the last preceding section, the right of private defense of the body
does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions
mentioned in section 99, to the voluntary causing to the assailant of any harm other than death. 14

2.7 Commencement and continuance of the right of private defense of the body (Section 102) : The
right of private defense of the body commences as soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit the offense though the offense may not have been committed; and
it continues as long as such apprehension of danger to the body continues15.

2.8 When the right of private defense of property extends to causing death (Section 103) : The right of
private defense of property extends, under the restrictions mentioned in section 99, to the voluntary causing
of death or of any other harm to the wrong-doer, if the offense, the committing of which, or the attempting to
commit which, occasions the exercise of the right, be an offense of any of the descriptions hereinafter
enumerated, namely - First - Robbery; Secondly - House-breaking by night; Thirdly - Mischief by fire
committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a
place for the custody of property; Fourthly -Theft, mischief, or house-trespass, under such circumstances as
may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of
private defense is not exercised. 16

2.9 When such right to causing any harm other than death (Section 104) : If the offense, the committing
of which, or the attempting to commit which occasions the exercise of the right of private defense, be theft,
mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that

13
https://www.srdlawnotes.com/2017/05/right-of-private-defense-section-96-to.html
14
Ibid
15
At https://www.legalbites.in/right-private-defense/
16
At https://www.lawctopus.com/academike/right-private-defense/#:~:text=Some%20of%20the%20aspects%20of,when%20no
%20state%20help%20is
right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned
in section 99, to the voluntary causing to the wrong-doer of any harm other than death. 17

2.10 Commencement and continuance of the right of private defense of property (Section 105) The
right of private defense of property commences when a reasonable apprehension of danger to the property
commences. The right of private defense of property against theft continues till the offender has effected his
retreat with the property or either the assistance of the public authorities is obtained, or the property has been
recovered. The right of private defense of property against robbery 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. The right of private defense of property against
criminal trespass or mischief continues as long as the offender continues in the commission of criminal
trespass or mischief. The right of private defense of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking continues. 18

2.11 Right of private defense against deadly assault when there is risk of harm to innocent person
(Section 106): If in the exercise of the right of private defense against an assault which reasonably causes
the apprehension of death, the defender be so situated that he cannot effectually exercise that right without
risk of harm to an innocent person, his right of private defense extends to the running of that risk.

3. Judicial approach

The composers of Indian penal code left this idea of Private protection in a 'flawed state' for example the
term private protection isn't as expected characterized in the arrangements of penal code , it generally created
or advanced throughout the years with decisions and choices of the courts. The arrangements were outlined
by the composers of the code such that such arrangements can be deciphered and examined by the legal
executive and can be altered by various circumstances and cases to keep up the standard of reasonableness
while giving equity to individuals of our nation, for example, they left it in an adaptable state. They followed
the Rawls rule of equity that it is the ethical commitment of the court to follow up based on reasonable
arbitration between contending claims. As such it is connected to reasonableness, privilege, and fairness.
And furthermore, equity can't be forfeited by virtue of cost, speed, and convenience. Yet, their aim was just
incompletely satisfied as to the nearby legal executive demonstrations in the somewhat severe way in
contrast with higher legal executive while deciphering this term private guard and this irregularity between
the legal understanding and the aim is referenced in the sections 100 and 102 of penal code(explained under
the head of 'sensible worry'). The Court deciphered and dissected the privilege of private safeguard in
different milestone cases.

Sukumaran v. State Rep. by the Inspector of Police AIR 2019 19 The Supreme Court, in this case,
acquitted the Tamil Nadu Forest ranger who was accused of killing a sandalwood smuggler in a certain

17
Ibid
18
Supra Note 2
19
Sukumaran v. State Rep. by the Inspector of Police AIR 2019 SC 1389
forest area by shooting him. The trial court had sentenced him to life imprisonment for murder. However,
the Madras High Court reduced the term to five years. In an appeal to the Apex Court, the accused
contended that he had a threat to his own life and that of his driver from the deceased smuggler. Acquitting
the accused the Court observed, “The right embraces the protection of property, whether one’s own or
another person’s, against offenses like theft, robbery, mischief and criminal trespass…mere reasonable
apprehension is enough to put the right of self-defense into operation. In other words, it is not necessary that
there should be an actual commission of the offense in order to give rise to the right of private defense.” The
appellant having seen the suspicious movements of the deceased party in the forest area rightly formed an
opinion that the deceased party was moving around in the forest to smuggle the sandalwoods. Therefore, he
was entitled to chase the deceased party and apprehend them for being prosecuted for the commission of an
offense punishable under the forest laws. Indeed, that was his duty; also, there was no motive attributed to
the appellant towards any member of the deceased party.

Darshan Singh v. the State of Punjab (2010) 2 SCC 333 20The Supreme Court laid down Guidelines for
Right of Private Defense for Citizens. It is observed that a person cannot be expected to act in a cowardly
manner when confronted with an imminent threat to life and has got every right to kill the aggressor in self-
defense. While acquitting a person of murder, the court said that by enacting Section 96 to 106 of the IPC,
the Legislature clearly intended to arouse and encourage the spirit of self-defense amongst the citizens, when
faced with grave danger. The Court set down ten rules where the right of self-preservation is accessible to a
resident, yet additionally cautioned that in the mask of self-protection, one can't be permitted to imperil or
compromise the lives and properties of others or to render individual retribution. The Apex court finished up
by saying that an individual who is under impending danger isn't expected to utilize the power precisely
needed to repulse the assault and his conduct can't be weighed on "golden scales."

Kesho Ram vs Delhi Administration AIR 1974 SC 1158 21The appellant was convicted u/s 353/332/333 of
the Indian Penal Code and was sentenced accordingly. The prosecution case was that the appellant
obstructed 3 inspectors and a peon of the Delhi Municipal Corporation when they went to seize the
appellants’ buffalo in the discharge of their duty to realize the milk tax from him and struck one of the
officers on the nose with the result that it bled and was found fractured. The main contention of the appellant
was that the attempt to realize the arrears of milk tax and recovery charges was illegal because no demand
was noticed under Sec. 154 of the Act was served on the appellant, and therefore, he had the right of private
defense. The prosecution relied on Sec. 99 Indian Penal Code which provides that there is no right of private
defense against an act of a public servant, done in good faith under the color of his office, though that act
may not be strictly justifiable by law. Further according to the prosecution, Sec. 161 of the Act empowered
the Inspector of the Corporation to seize and remove the appellant's buffalo for non-payment of tax and the
section gave them an overriding power to resort to seizing and detention of the animal. Therefore, according
to the prosecution, the appellant was guilty of the offenses charged. The Court held that immunity under

20
Darshan Singh v. State of Punjab (2010) 2 SCC 333
21
Kesho Ram vs Delhi Administration AIR 1974 SC 1158
Section 99 of the IPC can be claimed by a public servant if he acted in good faith under the color of his
office even though the legality of the act could not otherwise be sustained.

Nand Kishore Lal v. Emperor AIR 1924 Patna 789 Accused who were Sikhs, abducted a Muslim
22

married woman and converted her to Sikhism. Nearly a year after the abduction, the relatives of the
woman’s husband came and demanded that she return. The accused refused to comply and the woman
herself expressly stated her unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives
attempted to take her away by force. The accused resisted the attempt and in so doing one of them inflicted a
blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held that the right of
the accused to defend the woman against her assailants extended under this section to the causing of death
and they had, therefore, committed no offense.

4. Conclusion

The project tries to inspect the position of private defense in India. As mentioned in the research questions
the three research questions that have been mentioned above happen to try to be in this project. In the
project, the position of private defense in India and the provisions in the Indian penal code for the same.
Furthermore, it has also been discussed in the project, the Civil and criminal aspects of the private defense
doctrine in India. Although the civil aspect of the doctrine of private does not have big scope as criminal
law, it still has value in the eyes of the law. Also, it has been discussed in the project, the judicial approach
how the courts of the country have maintained the position of the doctrine private defense. The position of
the judiciary in any matter related to the rights of the people of the country is very important especially in a
matter like this where the right to life is involved as mentioned in article 21. if the courts of the country do
not uphold the integrity of the fundamental rights available to the citizens, then the purpose of the doctrine
private defense along with other such provisions and doctrine that intend to uphold and secure the integrity
of the human life.

22
Nand Kishore Lal v. Emperor AIR 1924 Patna 789
 BIBLIOGRAPHY

Books

1. Ratanlal and Dhirajlal, The Law of Torts, Lexis Nexix, India, 2010
2. R.K. Bangia, Law of Torts, Allahabad Law Agency, Allahabad, 2016

Online sources

1. https://www.legalbites.in/right-private-defense/
2. http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/THE%20RIGHT
%20OF%20PRIVATE%20DEFENSE-1.pdf
3. http://www.legalserviceindia.com/article/l470-Private-Defense.html
4. https://www.lawctopus.com/academike/right-private-defense/#:~:text=Some%20of%20the
%20aspects%20of,when%20no%20state%20help%20is
5. https://www.scconline.com/
6. https://www.westlawasia.com/

Legislations

1. The Indian Penal Code, 1860