DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,LUCKNOW

INDIAN PENAL CODE -1

PRIVATE DEFENCE OF BODY UNDER IPC

SUBMITTED TO – SUBMITTED BY -

DR. MALAY PANDEY Saniya Singh (220101087),

ASSISTANT PROFESSOR Taniska Singh (220101157),
Dr. Ram Manohar Lohiya National Law University, Sadanand Pandey (220101080)
Lucknow. Arpan Kushwaha (220101045)

B.A.LLB (Hons) section ‘A”

 TABLE OF CONTENTS
INTRODUCTION ....................................................................................................................................... 3

NATURE OF RIGHT................................................................................................................................... 4

SCOPE OF PRIVATE DEFENCE .................................................................................................................. 5

EVOLUTION OF THE RIGHT OF PRIVATE DEFENCE .................................................................................. 6

PROVISIONS FOR RIGHT TO PRIVATE DEFENCE UNDER IPC ................................................................... 8

BURDEN OF PROOF ............................................................................................................................... 11

LIMITATIONS OF RIGHT OF PRIVATE DEFNCE ....................................................................................... 12

ACTS OF PUBLIC SERVANT ................................................................................................................ 12

ACTS DONE UNDER THE DIRECTION OF PUBLIC SERVANT ............................................................... 13

RECOURSE TO PROTECTION OF PUBLIC AUTHORITIES ..................................................................... 13

EXCESS HARM NOT JUSTIFIED........................................................................................................... 14

JUDICIAL PRECEDENTS .......................................................................................................................... 15

MISUSE OF PRIVATE DEFENCE .............................................................................................................. 21

CONCLUSION......................................................................................................................................... 22

REFERENCES .......................................................................................................................................... 23
 INTRODUCTION

Every person of India has the right to engage in private self-defense against any external
force that can cause them harm or injury. In plain English, it denotes the employment of
otherwise illegal means to defend oneself or another person, to safeguard property, or to stop
any other crime. The laws relating to the right of private defence available to every Indian
citizen are found in Sections 96 to 106 of the Indian Penal Code 1860. Every free nation's
citizens should have the ability to self-defend against any impending danger in the event that
official assistance is not accessible or not feasible.

This right should be interpreted in light of the state's responsibility to safeguard its citizens
and their property. Every Indian citizen has the right to self-defense, however this right is
frequently abused by a large number of persons who use it as a justification for committing
crimes or other offences. Thus, there are several limitations and constraints on this right to
private defence. Although the right to private defence was given to Indian residents as a tool
for self-defense, it is frequently used by many people for wicked or illegal purposes. The
court now has the obligation and responsibility to determine whether the right was exercised
in good faith or not.1

The amount to which this privilege is exercised is determined by a reasonable apprehension

of the threat rather than actual danger. The accused may, under certain conditions, and only to
a limited extent, extend the right; however, this would not render the right to a private
defence unconstitutional.

In modern India, the right to private defence has evolved, although it was first put forth in a
draft code 150 years ago by an effervescent Macaulay with the aspirational goal of fostering a
"manly spirit" among the inhabitants or locals. An ideal Indian would persevere and not
hesitate to defend his own body, property, or those of another in the event of any risk or
danger. He would respond with caution so as to perhaps kill someone in an effort to prevent
certain harms and injuries.

1
Ratanlal & Dhirajlal, The Indian Penal Code, thirty second edition(2016), Lexis Nexis.
 NATURE OF RIGHT

The first rule is that everyone has a responsibility to look out for themselves. Every free
nation's citizens should have the ability to self-defend against any impending danger in the
event that official assistance is not accessible or not feasible. This right must be interpreted in
light of the state's obligation to safeguard its citizens' lives and property. But, no state,
regardless of how wealthy or resourceful it is, can afford to send out a policeman to safeguard
every single citizen from damage or injury from the outside world. 2

In order to ensure their protection, the state has granted every citizen of the nation the power
to impose his own laws. It should be made plain that when it is appropriate to seek the
protection of law enforcement authorities, there is no right to private defence. The right is
independent of the resistance's real wrongdoing. If the anxiety is genuine and reasonable,
whether it is incorrect or not depends only on the illegal or seemingly unlawful nature of the
act attempted. Since the use of this right does not constitute an offence, there is no private
defence right that can be used in response.3

In order to carry out its essential obligation, the government has granted the people the
authority to enforce the law on their own behalf if necessary for self-defense. One thing to
keep in mind when exercising this right is that it can only be used if there is no time to call
the police or no way for the state to offer assistance in the allotted amount of time, or if no
aid from the state is available. Any unlawful conduct undertaken by anyone when acting in
self-defense is not regarded as a crime, and as a result, no right to private defence may be
claimed in exchange.

The right is independent of the resistance's real wrongdoing. If the anxiety is genuine and
reasonable, whether it is incorrect or not depends only on the illegal or seemingly unlawful
nature of the act attempted.

2
Tushar sharma, PRIVATE DEFENSE UNDER IPC IPLEADERS (2018), https://blog.ipleaders.in/privathe-defence-
under-ipc/ (last visited Apr 6, 2023).
3
Suman yadav, AN ANALYSIS OF RIGHT OF PRIVATE DEFENCE OF PERSON IN CRIMINAL LAW: WHEN
CAUSING DEATH UNDER SELF DEFENCE IS JUSTIFIED?, 3 JOURNAL OF LEGAL STUDIES AND
RESEARCH 38–59 (2017).
 SCOPE OF PRIVATE DEFENCE

According to Section 97 of the Indian Penal Code, every citizen has the right, subject to
certain limitations (discussed in Section 99), to defend his or her own body or the body of
another person against any offence affecting the human body and their property, whether it be
immovable or mobile, against any act that constitutes robbery, theft, mischief, criminal
trespass, or an attempt to commit theft, robbery, mischief, or criminal trespass. This suggests
that helping oneself comes first, followed by helping others in the community, and that
helping others is a social responsibility. The obligation to defend others and their property
stems from human compassion.

Sections 76 to 106 of the IPC's Chapter IV define general defences that may be raised as an
exception to any offence. According to the right to private defence, all actions taken in self-
defense are not unlawful. When there is no longer a necessity to defend oneself, the right to
commit an offence does not entail the right to do so. Direct exercise of the right to private
defence is required in proportion to the level of violence.

According to section 98 of the IPC, every person has the same right to a private defence
against an act as he would have if the act were that offence. This is because when an act that
would otherwise be a certain offence is not that offence due to the youth, lack of
understanding maturity, unsoundness of mind, intoxication of the person performing the act,
or due to any misconception on the part of that person.

And in accordance with section 106 of the penal code, if the defender is in a position where
he cannot effectively exercise his right to private defence against an assault that reasonably
raises the possibility of death, his right to private defence extends to taking on that danger.

It is to be specifically noted that the right of private defence is available only to one who is
suddenly confronted of averting danger not of his own creation, Supreme Court further
opined in Laxman v. State of Orissa4, that necessity must be present, real and apparent.

4
Laxman v. State of Orissa, (1988)Cr LJ 188 SC.
 EVOLUTION OF THE RIGHT OF PRIVATE DEFENCE

Homicide, according to Roman law, was defined as the taking of another person's life.
Murder and manslaughter are the two levels of criminal homicide, whereas justifiable and
excusable homicide are the two levels of homicide that do not subject a person to penalty.
The act of self-defense was classified as justified homicide. Vim enim vi defendere omnes
leges emniaque jure permittunt (A man, therefore, incurs no obligation if he kills another's
slave who attacks him) states that it is legal to use violence in self-defense. 5 The Justinian
Code and the Twelve Tables both reaffirmed this right to private defence; the Code held that
no more force should be used than what is necessary to avert the immediate threat, while the
Tables, on the other hand, permitted killing in such a situation without limitations because it
was considered to be self-redress rather than self-defence.

The standing of the right to self-defense in English law changed over time in a number of
different ways. Even for homicide committed while defending oneself, there was ultimate
culpability in the ancient era. While homicide done in self-defense is viewed as permissible
in the Modern Age since it is assumed that such an act is not motivated by malice, the
philosophy of pardon arose and became excusable during the Medieval Ages.

Early on, the law just looked at a person's words and deeds; it did not probe a person's heart.
The era of strict liability was in effect. Regardless of his intentions, man was held
accountable for his actions. Liability for the crime's commission was determined without
regard to his mental state. Liability was placed on the external behaviour and the injury.
Liability also extended to injuries sustained in self-defense situations and accidents. So, the
actor's malign intent was unrelated to his criminal responsibility.

The emphasis shifted away from strict responsibility and towards the mental component in
the 13th century, nevertheless. Killing was permitted during this time period in a few rare
instances. Even though they were entitled to the King's pardon, murderers who committed
their crimes accidentally or in self-defense were nonetheless guilty of their crimes. Even
though the accused received a pardon during the Medieval era, he nevertheless lost his
property for the crime he committed in self-defense.

5
Samyak Mohanty & Rajdeep singh sengar, RIGHT OF PRIVATE DEFENCE ACADEMIKE (2019),
https://www.lawctopus.com/academike/right-private-defence/ (last visited Apr 5, 2023).
The community's moral sensibility could not continue to accept the notion that a victim of
self-defense was a criminal. In such circumstances, the jury was ultimately permitted to
return a not guilty decision. The concept of excusable homicide expanded as the Pardon of
the King in such situations quickly developed into a formality. 6 The act of forgiving was a
form of justification7. The very word excuse implied that the wrongdoer's actions should be
excused. Blackstone believed that "the want or defect of will" was the core of all excuses. All
of this was altered during the modern era. Self-defense is now a valid general defence since
there is a presumption that there is no mens rea in homicides committed in self-defense.

6
R.K Saxena, Indian Penal Code, twentieth edition, (2017), Central Law Publishing.
7
Public and Private Defences - Self -Defence and Prevention of Crime, E-LAWRESOURCES, http://www.e-
lawresources.co.uk/Public-and-private-defences.php (last visited Apr 4, 2023).
 PROVISIONS FOR RIGHT TO PRIVATE DEFENCE UNDER IPC

Sec. 96 to Sec. 106 of IPC provides for the right to private defence. In accordance with
Section 96, nothing done in the course of exercising a right to private defence constitutes an
offence. The right to private defence cannot be considered a crime in return.

The right to self-defense under Section 96 is not unqualified, but is instead expressly limited
by Section 99, which states that the right is never to cause more harm than is necessary for
self-defense8. It is well established that neither party has the right to a private defence during
a free fight, and that each person is solely responsible for his or her own actions. In the
following circumstances, a person's right to private defence will totally exonerate them of all
responsibility, even if they are responsible for the death of another person:

1. If the deceased was the actual attacker

2. The offence that prompted the exercise of the right to private defence of one's person and
property falls into one of the six or four categories listed in Sections 100 and 103 of the
penal code.

First clause of sec. 97 of IPC provides for the private defence of person. It says that every
person has the right, subject to the limitations in Section 99, to defend their own bodies and
property. First, defending his own body and any other person's body from any offence that
affects the human body. Right of private defence is essentially a defensive right and it is not a
punitive right. It is available only to defend oneself and it is not available against the
aggressor.

The right to private defence may only be exercised to the degree that it is absolutely
necessary under this Section. It must not go beyond what is required to stop aggression.
There must be a legitimate fear of harm coming from the perpetrator. The right to self-
defense is divided into two parts in this section; the first part addresses the right to the self-
defense of the person, and the second part with the right of private defence of property.

Sec. 98 states that for the purpose of exercising the right of private defence, physical or
mental capacity is no bar. This means that this right can be exercised against immature

8
K.D. Gaur, The Indian Penal Code, Sixth Edition(2018), Universal Law Publishing.
person, a mental person or any other physically or mentally incapable person. 9 It can be said
that the right of private defence is available against everyone. The component of mens rea is
irrelevant in determining whether private defence could have been used or not. Acc. to sec.
98 of IPC, private defence is available against the persons who are incapable of committing
crime as it would have been available against a completely sane person.

Sec. 100 of IPC provides for the private defence of body extending to cause death. Certain
situations are provided in this section on the happening of which right to private defence of
body can be pleaded. These situations are:

1. Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;
2. Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
3. An assault with the intention of committing rape;
4. An assault with the intention of gratifying unnatural lust;
5. An assault with the intention of kidnapping or abducting;
6. An assault with the intention of wrongfully confining a person, under circumstances that
may reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.
7. an act of throwing acid or attempting to throw acid.

Four conditions have been provided under this Sec. which are necessary to be fulfilled in order
to avail the defence of private defence. These conditions are:

1. The person exercising the right of private defense must be free from fault in bringing
about the encounter,
2. There must be an impending peril to life or of great bodily harm,
3. There must be no safe or reasonable mode of escape by retreat,
4. There must have been a necessity for taking life.
The apprehension of death however should be reasonable and it is upon the courts to decide
whether or not the apprehension is reasonable or not. In deciding reasonability, the manner in

9
B. M. Gandhi, in INDIAN PENAL CODE 129–145 (2008).
which the defence was used, weapons used and whether it was necessary to use such force
should be considered.10

Sec. 101 of IPC provides for when the private defence cannot extend to causing death. If the
offence be not of any of the descriptions enumerated in the last preceding section, the right of
private defence 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.

In other words, if none of the situations mentioned in sec. 100 is occurring, the private defence
cannot extend to causing death of the person. For claiming right of private defence extending
to voluntarily causing death, the accused must establish that there were circumstances giving
rise to reasonable grounds for apprehension that either death or grievous hurt would be caused
to him.11

Sec. 102 of IPC provides for continuance of private defence of body. It says that the right to
private defence of the body begins when a reasonable apprehension of risk to the body arises
from an attempt or threat to commit the offence, even if the offence is not performed; and it
continues as long as such apprehension of harm to the body exists. The fear of risk must be
reasonable, not irrational. For example, even if an attacker is armed with a lethal weapon and
intends to kill, one cannot shoot him from a considerable distance. This is because he has not
assaulted you, thus there is no realistic fear of attack. In other words, because there is no attack,
no right to private defence arises. Furthermore, the threat must be present and immediate. 12

In other words, it provides for two main points. First is that it begins as soon as there is
reasonable apprehension of danger and secondly, it continues to the point the reasonable
apprehension of danger is there. As soon as the threat or apprehension of threat ends, the
defence of private defence comes to an end.

10
Imran R Dar, RIGHT OF PRIVATE DEFENSE UNDER INDIAN PENAL CODE ACADEMIA.EDU (2017),
https://www.academia.edu/35433579/Right_of_Private_Defense_under_Indian_penal_code (last visited Apr 7,
2023).

11
Wassan Singh v. State of Punjab (1996)1 SCC 458.
12
Manan Mondal, A Detailed Study of Right to Private Defence under IPC LexForti, https://lexforti.com/legal-
news/wp-content/uploads/2021/04/1.-Pvt-defence.pdf (last visited Apr 5, 2023).
Section 106 discusses the right of private defence against a deadly assault when there is a risk
of harm to an innocent person: - If the defender is in such a position that he cannot effectively
exercise that right without risk of harm to an innocent person, his right of private defence
extends to the running of that risk.

BURDEN OF PROOF

The accused bears the initial burden of demonstrating the conditions that prompted the
exercise of the right to private defense, although that burden might be discharged based on
the preponderance of possibilities rather than proving them beyond reasonable doubt. The
accused is not required to produce evidence and can rely on the prosecution's cross-
examination of facts and witnesses to bolster his or her case. The prosecution is not required
by law to prove all injuries to the accused's person, and failing to do so does not
automatically result in the dismissal of their case.13

The burden of proof is on the accused under Section 105 of the Indian Evidence Act of 1872,
who takes the request of self-defence to demonstrate the equivalent. In such a circumstance,
the investigation would be about determining the true impact of the prosecution evidence
rather than about the accused relinquishing any weight. When the right to private defence is
used, the protection must be reasonable and convincing, demonstrating to the court that the
mischief caused by the accused was essential for either averting the assault or preventing
additional reasonable fear on his part. 14 The burden of proof of self-defense would be lifted
by the appearance of a preponderance of probabilities for that request based on material on
file.

13
Nandrajog D (2014) Private Defence: A Look at Definitional Aspects and Burden of Proof. J Civil Legal Sci
3:122. doi:10.4172/2169-0170.1000122.
14
ATCHUTHEN PILLAI P S. & K. I. VIBHUTE, PSA PILLAI'S CRIMINAL LAW (2021).
 LIMITATIONS OF RIGHT OF PRIVATE DEFNCE

Sec. 99 of IPC provides for the restrictions and limits on the scope and use of private defnce
available under general exceptions. It expressly specifies that the right to private defence is
not accessible against a public official or a person performing his or her duties lawfully and
in good faith. It further stipulates that the right to private defence is not relevant if there was
ample time to seek assistance from public authorities, and that the right must be exercised in
proportion to what is essential for defence.

It says that there is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act may not be strictly
justifiable by law.15

There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction
of a public servant acting in good faith under colour of his office though that direction may
not be strictly justifiable by law.16

There is no right of private defence in cases in which there is time to have recourse to
protection of the public authorities. The right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.

ACTS OF PUBLIC SERVANT

In a situation where public servants, such as police officers, are abdicating their duties, such
as when they do not have a warrant to search a house but forcefully enter it, the owner of the
house, who was resisting the forceful entry against the police officers, could not use the
illegality of the proceedings to justify his actions, because there was no malice on the part of
the public servant.

15
Nandharagh P.H , Study on Right to Private Defence, 4 (2) IJLMH Page 2333 - 2337 (2021), DOI:
http://doi.one/10.1732/IJLMH.26513.

16
Anand, Shreyansh, A Detailed Study of Right to Private Defense under IPC (August 10, 2022). Available at
SSRN: https://ssrn.com/abstract=4187214 or http://dx.doi.org/10.2139/ssrn.4187214
It is considered that such act done by the public servant under his office is done in good faith.
However, explanation 1 and 2 to sec. 99 will apply only when it is proved that the person
doing an act is well aware or has a reason to believe that doer of the act is public servant.

In Public Prosecute v. Suryanarayan17 on search by customs officers cer- tain goods were
found to have been smuggled from Yemen into Indian territory. In course of search the
smugglers attacked the officers and injured them. They argued that the officers had no power
to search as there was no notification declar ing Yemen a foreign territory under Section 5 of
the Indian Tariff Act. It was held, that the officers had acted in good faith and that the
accused had no right of private defence.

ACTS DONE UNDER THE DIRECTION OF PUBLIC SERVANT

The second clause of sec. 99 speaks of the acts done under the direction of the public servant.
If the following requirements are met, there is no right of private defence against an act
committed by any individual acting under the authority of a public servant:

(1) The act must be performed or attempted to be performed under the supervision of a public
servant.
(2) The act must be performed in good faith.
(3) The puch servant must be acting under the colour of his authority.
(4) The act must not cause reasonable fear of death or grave harm.
(5) The directive may not be legally justifiable.
(6) There must be reasonable grounds to believe that the acts were performed at the direction
of the public servant, or the person acting under the direction must state the authority
under which he acts, or if the authority is in writing, he must provide it on demand.

RECOURSE TO PROTECTION OF PUBLIC AUTHORITIES

The third clause states that there is no right to private defence when access to public authority
is available. Of course, this does not imply that a person should flee for safety rather than
defend himself. A person in possession of property cannot abandon it to the invaders. Under

17
Public Prosecute v. Suryanarayan 1937 MWN 741.
these conditions, one can raise his arms and retaliate in order to keep the attackers at bay
without seeking public protection.

According to the decision in the Biran Singh case, the complainant's injuries, the imminence
of the threat to his safety, the injuries caused by the accused, and the circumstances whether
the accused had time to seek recourse from public authorities are all significant elements to
be considered.18

EXCESS HARM NOT JUSTIFIED

The fourth and last clause establishes the scope of the RPD's application. The RPD does not
allow for the infliction of more injury than is necessary for defence. In other words, the
measure of self-defense must always be a force necessary and commensurate to the attacker's
quantum of force. That is, the amount of force used changes according to the threat and
danger posed by the assailant.19

The amount of harm produced in self-defense should never be greater than the amount of
harm required for defence. This is due to the fact that the right granted to a person is the right
of defense, not the right to punish the aggressor. As a result, nothing done as punishment can
be justified.

18
Gaur H.S., Penal Law of India, 11th Ed. (Vol.1), Law Publisher Pvt. Ltd.

19
Dar, Bilal & Shukla, Shirish. (2022). LEGAL ANALYSIS OF RIGHT TO PRIVATE DEFENCE.
 JUDICIAL PRECEDENTS

There are many leading cases with respect to private defence of body. These judicial
precedents have been set by the Courts in different instances and in few cases guidelines have
been provided to prevent misuse of private defence.

1. DARSHAN SINGH VS. STATE OF PUNJAB 20

The Supreme Court established Guidelines for Citizens' Right to Private Defense. It was
noticed that when confronted with an urgent threat to life, a person cannot be expected to act
cowardly and has every right to murder the attacker in self-defense. While acquitting a person
of murder, a bench comprised of Justices Dalveer Bhandari and Asok Kumar Ganguly stated
that when enacting Sections 96 to 106 of the IPC, the Legislature obviously intended to
arouse and encourage the spirit of self-defense among citizens when faced with grave danger.

The Court declared their legal position under the following 10 guidelines:

1) 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.
2) 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.
3) 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.
4) The right of private defense commences as soon as a reasonable apprehension arises
and it is co-terminus with the duration of such apprehension.
5) It is unrealistic to expect a person under assault to modulate his defense step by step
with any arithmetical exactitude.
6) 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.

20
Darshan Singh v. State of Punjab AIR (2010) SC 1212.
 7) 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.
8) The accused need not prove the existence of the right of private defense beyond
reasonable doubt.
9) The Indian Penal Code confers the right of private defense only when the unlawful or
wrongful act is an offence.
10) 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.
2. EMPEROR VS. MAMMUN21

The accused, a group of five, went out on a moonlit night armed with clubs and attacked a
worker cutting rice in their field. The man died on the scene after suffering six separate
fractures of the skull-bones and various traumas. When charged with murder, the defendants
invoked their right to private defence of their property. According to Section 99, there is no
right to private defence in circumstances where the public authorities' protection is available.

3. YOGENDRA MORAJI VS. STATE22

Sarkaria, J., of the Supreme Court, explored in length the scope and limitations of the right to
private bodily defence. The court emphasised that there must be no safe or reasonable option
of escape via retreat for the individual presented with an impending threat to life or serious
bodily damage other than killing the aggressor. This element has caused some uncertainty in
the law since it implies that one should first consider the possibility of withdrawal before
defending with force, which is contradictory to the premise that the law does not encourage
cowardice on the part of the one who is attacked. This retreat hypothesis, in fact, is an
adoption of the English common law principle of defence of body or property, according to
which common law courts have traditionally insisted on first determining whether the
accused could prevent the commission of crime against him by retiring.

21
Emperor vs Mammun (1912) 22 MLJ 333.

22
Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660.
4. NANDKISHORE LAL VS. EMPEROR23

Sikhs were accused of kidnapping a Muslim married woman and converting her to
Sikhism. Nearly a year after the abduction, the woman's husband's relatives arrived and
demanded her back from the accused. The latter refused to cooperate, and the woman herself
declared her aversion to rejoining her Muslim husband. The husband's relatives then sought
to take her away by force. The accused resisted the effort, and in doing so, one of them dealt
a blow on the skull of the woman's assailants, killing the latter. It was determined that the
accused's right to defend the woman from her assailants extended under this provision to the
causing of death, and that they had so committed no crime.

5. STATE OF UP VS. RAM SWAROOP24

“The Supreme Court Held that the right of private defence is a right of defence, not
retribution. It is available in face of imminent peril to those who act in good faith and in no
case can the right to be conceded to a person who stage-manages a situation where in the
right can be used as a shield to justify an act of aggression.”

According to the Supreme Court, the IPC does not provide the right to private defence as a
causing of death if the offence that gives rise to the exercise of the right is of such a nature
that, to the extent material, reasonably causes the apprehension that death or grievous harm
will otherwise be the result of assault. It was determined that the facts in the current case did
not require Ram Swarup to murder the dead by firing. The mere potential of a fight does not
excuse the death of the deceased. As a result, Swarup's Right to Private Defense plea was
dismissed.

23
Nand Kishore Lal v. Emperor, AIR 1924 Pat 78.

24
State of U.P. vs. Ram Swaroop, AIR 1974 SC 1570.
6. JAI DEV VS. STATE OF PUNJAB

In Jai Dev v. State of Punjab25, it was observed that as soon as the cause for reasonable
apprehension disappears and the threat has either been destroyed or has been put to
route, there can be no occasion to exercise the right of private defence.

7. NABIABAI VS. STATE OF MADHYA PRADESH26

In another case of Nabia bai vs. State of M.P., the facts are: one day while accused, her
mother and sisters were busy in weeding crop, deceased attacked upon them with knife,
accused and her sisters were unarmed, therefore to protect herself and her mother and sisters,
accused snatched the knife from the hand of deceased and caused serious injuries on
deceased. Court held that the accused is not guilty of any offence as she acted in right of
private defence of body and body of another person.

Supreme Court stated that following are the circumstance in which right of private defence
extends to causing death of the aggressor:

1) Number of injuries sustained by the accused supports the plea of private defence
taken by accused that there was reasonable apprehension that assault would result in
death.
2) If the deceased is unarmed and accused causes serious injuries to him, here the act of
the accused will not be justified as he does not have right to private defence to cause
serious injuries to an unarmed aggressor.
8. MOHINDER PAL JOLLY VS. STATE OF PUNJAB27

In Mohinder Pal Jolly v. State of Punjab, a dispute arose between labourers and the
administration regarding interest for compensation. The workers hurled brickbats at the
industrial complex. The owner of the industrial complex appeared and slaughtered one
specialist with a pistol. The Court ruled that the proprietor's right to private defence was
violated when he murdered the labourer. Essentially, when an accused was assaulted by the

25
Jai Dev v. State of Punjab AIR 1963 SC 612.

26
Nabia bai vs. State of M.P. AIR 1992 SC 602.

27
Mohinder Pal Jolly Vs. State of Punjab (AIR 1979 SC 577).
expired and cut him in the heart with the sword, it was determined that the accused exceeded
his ideal for Private Defense.

9. STATE OF GUJARAT VS. BAI FATIMA28

The court stated that the High Court's view that respondent 1 acted in self-defense was wrong
in law and fact, and even going to the maximum extent and considering the facts, the
respondent 1 received blows from the deceased in the first incident, but in the second
incident, the respondent's attack on the deceased was deliberate, and the respondent's injuries
were minor.

The court also ruled that the prosecution's failure to explain injuries could have a negative
impact on the prosecution's case. Although it is a component that the court must examine
when granting the right to private defense, there are other elements that must be addressed as
well.

10. NAVEEN CHANDRA VS. STATE OF UTTARANCHAL 29

It was held by the court that any act done in the exercise of right of private defence
under Section 96 of Indian Penal Code, 1860 cannot be consider as an offence, but in the
light of the facts of the case as stated above the Accused exceeded it by continuing attacks
after the threat to life. Therefore, this appears to be a case where the provision of Section 304
Part I of Indian Penal Code, 1860 would be applicable.

11. BIRAN SINGH VS. STATE OF BIHAR30

It was decided in Biran Singh case that the injuries received by the complainant, the
imminence of the threat to his safety, the injuries caused by the accused and the
circumstances whether the accused had time to have recourse to public authorities are all
relevant factors to be considered on a plea for right of private defence.

28
State of Gujarat v. Bai Fatima (1975) 2 SCC 7.

29
Naveen Chandra v. State of Uttaranchal, 2007 CrLj 874 (SC).

30
Biran Singh v. State of Bihar (1975) 4 SCC 161.
12. JAIPAL VS. STATE OF HARYANA31

In Jaipal v. State of Haryana, Accused persons were armed with dangerous weapons, but
non from the complainant party was armed. The accused inflicted blows on the vital parts of
the deceased’s body, court held that the accused party is aggressor, and subsequently
conviction for murder was upheld.

13. KESHO RAM VS. DELHI ADMINISTRATION32

The appellant was found guilty and sentenced in accordance with Sections 353/332/333 of
the Indian Penal Code. The prosecution case was that the appellant obstructed three
inspectors and a peon from the Delhi Municipal Corporation when they went to seize the
appellants' buffalo in order to recover the milk tax from him, and struck one of the officers on
the nose, causing it to bleed and be fractured. The appellant's principal position was that the
attempt to recover milk tax and recovery charges was invalid because no demand notice was
filed on him under Section 154 of the Act, and thus he had the right of private defence.

The prosecution cited Section 99 of the Indian Penal Code, which states that there is no right
of private defence against an act of a public worker done in good faith under the cover of his
position, even if that act is not precisely justified by law. According to the prosecution,
Section 161 of the Act enabled the Corporation's Inspector to seize and remove the
appellant's buffalo for non-payment of tax, and the section granted them the overriding power
to seize and detain the animal. As a result, the prosecution claims that the appellant
committed the charges. The Court decided that a public worker can claim immunity under
Section 99 of the IPC if he acted in good faith under the colour of his office, even though the
legality of the act could not otherwise be upheld.

14. DEO NARAIN VS. STATE OF UTTAR PRADESH33

The Supreme Court held in Deo Narain v. State of Uttar Pradesh that when a blow is
aimed at a vulnerable part of the body, such as the head, even by a lathi, and cases are not
known in which such a blow by a lathi has actually proved instantaneously fatal, it cannot be

31
Jaipal v. State of Haryana 1988 AIR 1504.

32
Kesho Ram vs Delhi Administration AIR 1974 SC 1158.

33
Deo Narain v. State of U.P. AIR 1973 SC 473.
laid down as a sound proposition of law that in such cases the victim is not justified in using
even his spear in defending himself. It is somewhat difficult to expect parties confronted with
grave aggression to coolly weigh in a golden scale, or calmly determine with a composed
mind, precisely the kind and severity of blow that would be legally sufficient to effectively
meet the unlawful aggression.

MISUSE OF PRIVATE DEFENCE

Every Indian citizen has the right to self-defense, however many people abuse this privilege
by using it as a justification to commit any crime or offence. It is a right granted for defense,
not retaliation, and cannot be used to exact retaliation. This right of private defence does not
apply to any legitimate act, i.e. if the person's activity is lawful and does not result in an
offense, the right of private defence cannot be invoked.

Some people intentionally provoke others into hostility and then use that as a pretext to cause
violence or even murder. This, however, cannot be used in cases when solely the accused has
demonstrated aggressiveness. Many individuals see this as a licence to kill because the IPC is
vague about when an attack might be induced as a pretext to kill.

The court did, however, confirm that private defence is only available to individuals who act
in good faith and do not exploit it to justify wrongdoing or hostility. In addition, the court
said that "while ensuring the right to private defense, the criminal code did not devise a
mechanism by which an attack could be provoked as a pretext for killing."34

When the assailant is unarmed and the defender responds with a deadly weapon, the
reasonable fear of death or grievous harm can be presumed to have caused but the instinct of
resistance converts into the attack and in the absence of express act which would constitute
private defense, the plea is raised without a second thought because the justification of self-
acts and the purpose behind others' acts is easily impugned.35

34
https://www.legalserviceindia.com/legal/article-9582-right-of-private-defence-under-
ipc.html#:~:text=Misuse,as%20a%20measure%20of%20revenge.

35
https://judicateme.com/the-tainted-use-of-private-defence/
 CONCLUSION

Private defence, in general, is a basis for any violation against an individual or property. It
also applies to an outsider's defence, and it can be used against both chargeable and guiltless
aggressors. The precaution is permissible only when it is immediately basic against weakened
viciousness. An individual who acts in a confused faith in the necessity for guard is secure;
nonetheless, the blunder should be reasonable. On a basic level, it should be sufficient that
the power used was truly required for security, notwithstanding the fact that the performer
was unaware of this; nonetheless, the law is unclear.

There is no obligation to retire as a result, but even a protector should express his desire to
leave the conflict at any time. The right to private protection is not forfeited since the
safeguard would not obey unlawful demands. The power used in protection should be not just
critical to avoid the assault, but also reasonable, for example, proportionate to the mischief at
stake; the standard is best expressed in the negative structure that the power should not be in
such a way that a reasonable man would have viewed it as being messed up in relation to the
risk.

In the years since the code's inception and implementation, the judiciary has evolved the
application of the right to private defence from cases brought before the courts, and
universality can be generated for many circumstances such as private defence versus private
defense, private defence in a free fight, private defence against unarmed, and so on. The
legislature may strive to finalise those regulations uniformly drawn and approved by the
courts into a draught in order to concretize the subject matter relevant to the right of private
defence.
 REFERENCES

Cases

Biran Singh v. State of Bihar ................................................................................................... 19

Darshan Singh v. State of Punjab ............................................................................................ 15

Deo Narain v. State of U.P....................................................................................................... 20

Emperor vs Mammun ............................................................................................................... 16

Jai Dev v. State of Punjab ........................................................................................................ 18

Jaipal v. State of Haryana ....................................................................................................... 20

Kesho Ram vs Delhi Administration ........................................................................................ 20

Laxman v. State of Orissa, ......................................................................................................... 5

Mohinder Pal Jolly Vs. State of Punjab ................................................................................... 18

Nabia bai vs. State of M.P ....................................................................................................... 18

Nand Kishore Lal v. Emperor .................................................................................................. 17

Naveen Chandra v. State of Uttaranchal ................................................................................. 19

Public Prosecute v. Suryanarayan ........................................................................................... 13

State of Gujarat v. Bai Fatima ................................................................................................. 19

State of U.P. vs. Ram Swaroop ................................................................................................ 17

Wassan Singh v. State of Punjab ............................................................................................. 10

Yogendra Morarji v. State of Gujarat ...................................................................................... 16

Books

ATCHUTHEN PILLAI P S. & K. I. VIBHUTE, PSA PILLAI'S CRIMINAL LAW ................................. 11

B. M. Gandhi, in INDIAN PENAL CODE ....................................................................................... 9

Gaur H.S., Penal Law of India ................................................................................................. 14

K.D. Gaur, The Indian Penal Code ............................................................................................ 8

R.K Saxena, Indian Penal Code ................................................................................................. 7

Ratanlal & Dhirajlal, The Indian Penal Code, thirty second edition(2016), Lexis Nexis. ........ 3
Journals and Articles

Anand, Shreyansh, A Detailed Study of Right to Private Defense under IPC ........................ 12

Dar, Bilal & Shukla, Shirish. (2022). LEGAL ANALYSIS OF RIGHT TO PRIVATE
DEFENCE ............................................................................................................................ 14

Imran R Dar, RIGHT OF PRIVATE DEFENSE UNDER INDIAN PENAL CODE ACADEMIA.EDU ........ 10

Manan Mondal, A Detailed Study of Right to Private Defence under IPC LexForti .............. 10

Nandharagh P.H , Study on Right to Private Defence, ............................................................ 12

Nandrajog D (2014) Private Defence: A Look at Definitional Aspects and Burden of Proof 11

Samyak Mohanty & Rajdeep singh sengar, RIGHT OF PRIVATE DEFENCE ACADEMIKE ............. 6

Suman yadav, AN ANALYSIS OF RIGHT OF PRIVATE DEFENCE OF PERSON IN

CRIMINAL LAW: WHEN CAUSING DEATH UNDER SELF DEFENCE IS JUSTIFIED?, 4

Tushar sharma, PRIVATE DEFENSE UNDER IPC IPLEADERS ........................................................ 4