DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
LUCKNOW

Project work on

SUBMITTED TO: SUBMITTED BY:

Dr. Kumar Askand Pan Sanskriti Verma
Dr. Malay Pandey Section – ‘B’
(Indian Penal Code) Enrollment Number-210101131
BA LLB. (Hons.) Semester-4

Dr. Ram Manohar Lohiya National Law University

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 ACKNOWLEDGEMENT
I express my gratitude and deep regards to my professor Dr. Kumar Askand
Pandey, for his guidance and constant supervision as well as for providing
necessary information regarding the project, also for his support in completing
the project. I extend my gratitude to my seniors, who constantly helped me find
the best source for research. Finally, I acknowledge the authorities as well as the
caretakers of Dr. Madhu Limaye library, who provided me with the means to
make this project. This project is a result of my efforts combined with my
family and friends’ constant encouragement without which this assignment
wouldn’t have been possible.

THANK YOU
SANSKRITI VERMA
ENROLLMENT NUMBER-210101131

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 DECLARATION

I hereby declare that the project report analysis of the “PRIVATE DEFENCE”
submitted by me to Dr. Ram Manohar Lohia National Law University,
Lucknow, Uttar Pradesh in partial fulfilment and requirement for the award of
the degree of B.A. LL.B.(Hons) is recorded of bonafide project work carried out
by me under the guidance of Dr. Kumar Askand Pandey.

I further declare that all the information and data that has been analyzed, and the
work done by me is my piece of work and authentic to the best of my
knowledge under the supervision and guidance of my constitution professor.

SANSKRITI VERMA
ENROLLMENT NUMBER:21010113

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 INDEX
1- Introduction…………………………………………………….5
2- Nature of the Right……………………………………………..6-7
Scope of private defence
3- Private Defence under IPC…………………………………….8-11
4- The Right of Private Defence in other legal systems………….11
5- Private Defence in the Indian Legal System…………………..12
6- Judicial View on Private Defence……………………………..13-15
7- Conclusion…………………………………………………….15-16
8- Bibliography…………………………………………………...17

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 Private Defence under Indian Penal Code
Introduction
Private Defence implies the use of otherwise unlawful actions in order to protect oneself or
any other individual, to protect the property or to prevent any other crime. Section 96 to 106
of the Indian Penal Code 1860 contains the provisions regarding the right of private defense
available to every citizen of India. This right can only be exercised in case of overhanging
danger and state aid or help is not available. . This right has basically evolved with time by
judgments and decisions of the Supreme Court of India. One of the most important principles
of private defense is the ‘reasonableness’ of the defense used. There are various limitations as
well as exceptions to this right and will be stated in the paper. Some remedies are also
available in case of misuse of this right according to the maxim ‘ubi jus ibi remedium’ i.e.
where there is a right there is a remedy. Private defense is a right available to every citizen of
India to protect themselves from any external force that can result in any harm or injury.
Citizens of every free country should be provided with the right of private defense in order to
protect themselves from any imminent danger at a time when state aid is not available or
possible. This right should be read with the duty of the state to protect its citizens as well as
their property It was granted as a right for self-protection to every citizen of India, but it is
often misused by many people by treating it as an excuse of committing any crime or offence.
Therefore this right to private defense is subject to certain restrictions and limitations.
Though the right of private defence was granted to citizens of India as a weapon for their self
defence this is often used by many people for evil purposes or unlawful purposes. Now it is
the duty and responsibility of the court to examine whether the right was exercised in a good
faith or not. The extent of exercise of this right doesn’t depend on actual danger but instead
on the reasonable apprehension of the danger. The right can be extended by an accused in
some circumstances but only to a certain degree, which would not invalidate the right of
private defence. Body may be one’s own body or the body of another person and likewise
property may be movable or immovable and may be of oneself or of any other person. Self-
help is the first rule of criminal law. The right of private defence is absolutely necessary for
the protection of one’s life, liberty and property. It is a right inherent in a man. But the kind
and amount of force is minutely regulated by law. The use of force to protect one’s property
and person is called the right of private defence.

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Nature of the Right
Self-help is the first principle, that is, it is man's first duty to help himself. Citizens of every
free country should have the right of private defence to protect themselves from any
imminent danger at a time when state aid is not available or possible. This right must be
understood as the duty of the state to protect its citizens and their property. But no state, no
matter how rich or how great its resources, can afford to deploy police officers for every
single citizen to protect themselves from any outside harm or injury.

Therefore, in order to fulfill its basic duty, it has given this power to the citizens themselves,
that they are authorized by the state to take the law into their own hands when it comes to
their self-defence. One thing to consider in exercising this right is that the right to private
defence can only be exercised if there is no time to call the police or assistance from the state
authorities cannot be provided at that time, i.e. assistance from the state. not available. Any
unlawful act committed by any person in self-defence is not considered a criminal offense
and therefore does not create any right of private defence in return. The right is not dependent
on the actual criminality of the person being resisted. It matters only the illegal or apparently
illegal nature of the attempted act, if the arrest is real and reasonable, it does not matter that it
is false.

Scope of Private Defence

Sec 971 of the IPC states that every citizen is having this right subject to certain restrictions
(mentioned in sec 992) to defend his own body or the body of any other person, against; any
offense affecting to the human body; the property whether immovable or movable, of himself
or of any other person, against any act, which is an offense falling under the definition of
robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery,
mischief or criminal trespass.

This implies that Self-help is the first principle i.e., it is the duty of a person to help himself
and then arises a social duty to help other members of society. The social duty arises out of
Human sympathy to protect others and their property.

1
Indian Penal Code 1860, §97.
2
Indian Penal Code 1860, §99.

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As per sec 98 of IPC3 when an act which would otherwise be a certain offence, 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 defence against that act
which he would have if the act was that offence. And according to sec 106 of penal code If, in
the exercise of the right of private defence against an assault which reasonably causes the
apprehension of death, the defender be so situated that he cannot effectually exercise that
right without risk or harm to an innocent person, his right of private defence extends to the
running of that risk.

The extent of the right of private defence and the limitations in the exercise of this right
may be summarized as below: —

(1) There is no right of private defence against an act which is not in itself an offence under
this Code. This does not cover the case of exceptions.

(2) The right commences as soon as and not before a reasonable apprehension of danger to
the body arises from an attempt or threat to commit some offence. The right is availed of only
against a danger imminent, present and real.

(3) It is defensive and not a punitive or retributive right. In no case the right extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence, though
reasonable allowance should be made for bona fide defender.

(4) The right extends to the killing of actual assailant when there is a reasonable and
imminent danger of the atrocious crimes enumerated in the six clause s of Section 100.

(5) There must be no safe or reasonable mode of escape by retreat, for the person confronted
with an impending peril to life or of grave bodily harm except by inflicting death on the
assailant.

(6) The right is, in essence, a defensive right, does not accrue and avail where there is time to
have recourse to the protection of public authorities.

3
Indian Penal Code 1860, §98.

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Private Defence under IPC

The Indian Penal Code, 1860, Section 96 to Section 106 enshrines Right of Private Defence
of person and property.

Provisions contained in these Sections authorize a man to use necessary force against a
person who assaults him or wrong did for the purpose of protecting one’s own body and
property as well as another’s property and property when in case immediate aid from the state
machinery is not readily at the moment available and in so doing, he is not answerable in law
for his actions. Section 96 declares in general that nothing is an offence that is done in the
exercise of the right of private defence. Section 97 says that right of Private Defence is of two
types:

1) Right to private defence of body

2) Right to private defence of Property

The term "body" can refer to one's own body or another person's body, while the term
"property" can refer to mobile or immovable things that belong to oneself or to any other
person. The first rule of criminal law is self-help. To safeguard one's life, liberty, and
property, one must have the right to self-defense at all costs. It is a natural human right. Yet
the law is very specific about the kind and amount of force. The right to private defense refers
to the use of force to defend one's person and property.

Section 964. Things done in private defence:

Nothing is an offence, which is done in the exercise of the right of private defence.

Right of private defence cannot be said to be an offence in return. The right of self-defence
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
defence. It is well settled that in a free fight, no right of private defence is available to either

4
Indian Penal Code 1860, §96.

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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 defence, 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 defence is upon the person who wants to plead
it. But an accused may be acquitted on the plea of the right of private defence even though he
has not specifically pleaded it.

The right of private defence, as the name suggests, is an act of defence and not of an offence.
Consequently, it cannot be allowed to be used as a shield to justify aggression. This requires a
very careful weighing of the facts and circumstances of each case to decide whether the
accused had in fact acted under this right. Assumptions without any reasonable basis on the
part of the accused about the possibility of an attack do not entitle him to exercise this right.
It was held in a case that the distance between the aggressor and the target may have a
bearing on the question of whether the gesture amounted to assault. No precise yardstick can
be provided to fix such a distance since it depends upon the situation, the weapon used, the
background and the degree of the thirst to attack etc.

The right of private defence will completely absolve a person from all guilt even when he
causes the death of another person in the following situations, i.e.

# If the deceased was the actual assailant, and

# If the offence committed by the deceased which occasioned the cause of the exercise of the
right of private defence of body and property falls within any one of the six or four categories
enumerated in Sections 100 and 103 of the penal code.

Ingredients for Private Defence

Section 97 laid down the ingredients for private defence:

• Each and every person has the right to private defence.

• There must be apprehension or fear of harm to the body or property.
• Recourse to calling public authorities is not available.

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 • An offence amounting to committing theft, robbery, mischief, or criminal trespass is
taking place.

Section 97. Right of private defence 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 offence affecting the
human body;

Secondly-The property, whether movable or immovable, 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 for criminal
trespass.

This Section limits exercise of the right of private defence to the extent of absolute necessity.
It must not be more than necessary for defending aggression. There must be reasonable
apprehension of danger that comes from the aggressor in the form of aggression. This Section
divides the right of private defence into two parts, i.e. the first part deals with the right of
private defence of person, and the second part with the right of private defence of property.
To invoke the plea of right of private defence there must be an offence committed or
attempted to be committed against the person himself exercising such a right, or any other
person. The question of the accrual of the right of the private defence, however, does not
depend upon an injury being caused to the man in question. The right could be exercised if a
reasonable apprehension of causing grievous injury can be established. If the threat to person
or property of the person is real and immediate, he is not required to weigh in a golden scale
the kind of instrument and the force which he exerts on the spur of the moment. The right of
private defence extends not only to the defence of one’s own body and property, as under the
English law, but also extends to defending the body and property of any other person.

Ingredients for Private Defence

Section 97 laid down the ingredients for private defence:

• Each person has the right to private defence.

• There must be apprehension or fear of harm to the body or property.

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 • Recourse to calling public authorities is not available.
• An offence amounting to committing theft, robbery, mischief, or criminal trespass is
taking place.

IPC Section 98. Right of private defence against the act of a person of
unsound mind, etc:

The right of private defence of a body exists against all attackers, whether with or without
mens rea. A person has the same right of private defence which he would have against the
acts of a sane person. Even if an attacker is protected by law, that does not diminish the
danger and risk created from his acts. That is why the right of private defence in such cases
also can be exercised, or else it would have been futile and meaningless.

The Right of Private Defence in other legal systems:

American law

The right of Private defence in American legal system is quite similar as in Indian legal
system.

Two points of utmost importance in American legal system:

• Principle of reasonableness i.e. the right commences as soon as and not before a
reasonable apprehension of danger to the body arises from an attempt or threat to
commit some offence. The right is availed of only against a danger imminent, present
and real.
• Force should be proportionate to the harm i.e. only that amount force should be used
that is necessary to avoid the threatened injury or harm.

English Law

In English legal system the right of private defence is granted under Criminal law act 1967.
Sec 3(1) of this act states that A person may use such force as is reasonable in the
circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large.

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Sec 3(2) – Subsection (1) above shall replace the rules of the common law on the question
when force used for a purpose mentioned in the subsection is justified by that purpose.

In English Legal system this right helps in complete discharge or acquittal of a defendant as
the force used by him wasn’t illegal. But whether he should be acquitted or not depends on
the decision of the court. The court analyses the reasonableness of the defence used by him.
The court analyses:

• Reasonableness of the defence i.e. the right commences as soon as and not before
a reasonable apprehension of danger to the body arises from an attempt or threat to
commit some offence. The right is availed of only against a danger imminent,
present and real.

• Injuries caused by the accused

• Injuries caused to the accused

• Accession of threat to his safety

According to the jury a person should act in good faith and don’t try to misuse this right by
using it as an excuse of justifying their legal act and get acquitted for their offence. Like
Indian legal system the right of private defence in English legal system has evolved over the
years with the judicial decisions and judgments.

Private Defence in the Indian Legal System

The Right to private defence of a citizen, where one can practically take law in his own hands
to defend his own person and property or that of others, is clearly defined in Section 96 to
Section 106 of the Indian Penal Code. Nothing is an offence, which is done in the exercise of
the right of private defence. Section 96 is a declaratory provision wherein it is expressly
provided that if anything i.e. any harm is caused in the exercise of one’s right to private
defence then it will not be an offence. Therefore the accused, in order to take the benefit of
section 96, shall prove that he was acting with the domain of his right to private defence.
Thus the issue arises as to what will be the domain of one’s right to private defence and it is
here that the various provision from section 97 till 106 will be applicable. 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 offence affecting the human body and secondly-the
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property, whether movable or immovable, 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 for criminal trespass. In
the cases of body the right is available with respect to any offence against human body
whereas in the matters of property it is available only in case of theft, robbery, mischief,
criminal trespass. These are those offences of property in which there is a sense of physical
urgency, and these are considered to be fit cases for private defence.

Judicial View on Private Defence The right of private defence legally accords to the
individuals the right to take reasonably necessary measures to protect themselves under
special circumstances. The inconsistency between the judicial interpretation and the intention
of the Code framers is exemplified in the interpretation of “reasonable apprehension” under
Sections 100 and 102. Evidently, the local courts have adopted a strict objective approach in
determining reasonable apprehension, ignoring its inherent ambiguity.

Darshan Singh v. State of Punjab5- The Supreme Court laid down Guidelines for Right Of
Private Defence for Citizens. It 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. A bench comprising Justices Dalveer Bhandari and Asok
Kumar Ganguly, while acquitting a person of murder, said that when 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 law does not require a law-
abiding citizen to behave like a coward when confronted with an imminent unlawful
aggression. As repeatedly observed by this court, there is nothing more degrading to the
human spirit than to run away in face of danger. Right of private defense is thus designed to
serve a social purpose and deserves to be fostered within the prescribed limit.”

The court laid down ten guidelines where right of self-defence is available to a citizen, but
also warned that in the disguise of self-defence, one cannot be allowed to endanger or
threaten the lives and properties of others or for the purpose of taking personal revenge. The
apex court concluded by saying that a person who is under imminent threat is not expected to
use force exactly required to repel the attack and his behaviour cannot be weighed on “golden
scales.”

5
Darshan Singh v. State of Punjab 1953 AIR 83.

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The Court declared their legal position under the following guidelines:

• Self-preservation is a basic human instinct and is duly recognized by the criminal

jurisprudence of all civilized countries. All free, democratic and civilized countries
recognize the right of private defense within certain reasonable limits.

• The right of private defense is available only to one who is suddenly confronted with
the necessity of averting an impending danger and not of self-creation.

• A 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 offence in order to give rise to the right of private defense. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed if the right of private defense is not exercised.

• The right of private defense commences as soon as a reasonable apprehension arises

and it is co-terminus with the duration of such apprehension.

• It is unrealistic to expect a person under assault to modulate his defense step by step
with any arithmetical exactitude.

• In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.

• It is well settled that even if the accused does not plead self-defense, it is open to
consider such a plea if the same arises from the material on record.

• The accused need not prove the existence of the right of private defense beyond
reasonable doubt.

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 • The Indian Penal Code confers the right of private defense only when the unlawful or
wrongful act is an offence.

• A person who is in imminent and reasonable danger of losing his life or limb may, in
exercise of self defense, inflict any harm (even extending to death) on his assailant
either when the assault is attempted or directly threatened.

Nand Kishore Lal v. Emperor6

Accused who were Sikhs, abducted a Muslim 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 re-join 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 offence.

Conclusion

The force used in defence must be not only necessary for the purpose of avoiding the attack
but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the
negative form that the force must not be such that a reasonable man would have regarded it as
being out of all proportion to the danger. The traditional rule is that even death may be
inflicted in defence of the possession of a dwelling. The occupier of premises may use
necessary and reasonable force to defend them against a trespasser, or one reasonably thought
to be a trespasser, and it seems that even a licensee (such as a lodger) can eject trespassing
strangers. It is a statutory offence to set spring guns or mantraps, except in a dwelling house
between sunset and sunrise. It has not been decided whether the exception operates to confer
an exemption from the ordinary law of offences against the person. Such defences as spikes
and dogs are lawful if reasonable. Thus, we can see the right of private defence is very
helpful in giving citizens a weapon which in a case that it’s not misused is subject to certain
restrictions, helps them protect their and others’ lives and property.

6
Nand Kishore Lal v. Emperor 81 Ind Cas 158.

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Though the right of private defence was granted to citizens of India as a weapon for their self
defence this is often used by many people for evil purposes or unlawful purposes. Now it is
the duty and responsibility of the court to examine whether the right was exercised in a good
faith or not. There are several important points that the court will take into consideration
while making its decision:

• Injuries caused by the accused.

• Injuries caused to the accused.

• Whether the state aid was available ( whether the accused had time to contact the
public authorities)

• Accession of threat to his safety

Also the Indian Penal Code doesn’t properly define this right and it has evolved over the
years with judgments and decisions of the Courts in various landmark cases as stated above
for example Munshi ram and others vs. Delhi Administration, State of U.P vs. Ram Swarup
and several other cases. But it is also argued that the wordings of the sections need no further
clarification than has already been done by the courts as it was the foresight of the legislature
to grant such wide discretion to the courts that they may cover within their ambit, the entire
gamut of situations which might arise and meet the ends of justice.

The extent of exercise of this right doesn’t depend on actual danger but instead on the
reasonable apprehension of the danger (whether there was any reasonable apprehension of the
danger) . The right of private defence is available when one is suddenly confronted with the
immediate necessity of averting and impending danger, it commences as soon as reasonable
apprehension arises and continues with apprehension. The right can be extended by an
accused in some circumstances but only to a certain degree, that would not invalidate the
right of private defence i.e. only such amount of force should be used that is required to
dispel the threat or counter the attack.

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 BIBLIOGRAPHY

1- Indian Penal Code 1860, §97.

2- Indian Penal Code 1860, §99.
3- Indian Penal Code 1860, §98.
4- Indian Penal Code 1860, §96.
5- Darshan Singh v. State of Punjab 1953 AIR 83.
6- Nand Kishore Lal v. Emperor 81 Ind Cas 158.
7- https://indiankanoon.org/doc/1210789/
8- V L Vibhute, |Psa Pillai's Criminal Law| (14Th Edition,2019).

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