INTRODUCTION
Private Defense, also known as self-defense, is a legal proposition which states that an individual has the right to fight back against the perpetrator and even cause injury or death in certain circumstances while protecting himself against the perpetrator. The provisions of the BNS dealing with private defense are similar to those under the IPC. It was provided under Section 96-106 of the IPC.Currently, it is provided under Sections 34-44 of the BNS. The concept of defense is based on the inherent rights of an individual to protect themselves against imminent danger to their body or property. However, this right is not absolute in nature and can only be exercised if certain conditions exist.
Right to Private Defense
Section 34 of the Bhartiya Nyaya Sanhita states any act done in the exercise of private defense is not an offense. This is analogous to Section 96 of the Indian Penal Code. The BNS has not brought any change over here. It should be important to note that the act done in respect of private defense should be proportional to the threat that the person is about to face. Any disproportionate action would prohibit the person from claiming the benefit of private defense. In the case of Kamparsare v. Putappa(1943), the accused had beaten up a youngster as he was producing cloud dust on the roadway. The court held that the accused was exercising his right to private defense and therefore he did not commit any offense.
Private Defense of Body and Property
Section 35 of the BNS states that every person has a right to defend their body and the body of another person with respect to the offenses affecting the human body. Secondly, every person has a right to defend their property or the property of another person against acts which may come under theft, robbery, mischief or criminal trespass and even includes the attempt to commit any of the above-mentioned acts. Under this section, both movable and immovable property are included. This section of the BNS is analogous to Section 97 of the IPC. The right to private defense can only be exercised in cases of absolute necessity where there is no other alternative. This section also permits a stranger to protect the body or property of another person. This is important as sometimes the person being affected may not be strong enough to take on the perpetrator and therefore another person can come to his rescue to protect him. The law protects the stranger.
Private defense against minors, persons with unsound mind etc
Section 36 of the BNS states when an act is not an offense due to the fact that it has been committed by a minor, person with unsound mind or lack of maturity or under misconception, each person shall have the right to private defense against such a person as if the act was an offence. Basically, every person will have the same right of private defense against minors, lunatics etc as they would have against other people. The mental or physical incapacity against whom it is exercised is not of relevance. For example – A under the influence of madness, attempts to kill B. A is not guilty of any offence but B has the same right of private defense as he would have had if A was a sane person.
Acts against which there is no right of private defense
Section 37 lays down the limitations of the right of private defense. Private Defense will not lie against an act which does not reasonably cause the apprehension of death or grievous hurt if done by a public servant in good faith under the authority of his office. Such an act may not be justifiable by law. The above limitation will also apply to acts done under the direction of the public servant. Private Defense shall not be applied against an act when there is recourse to public authorities. Section 37(2) specifically states that the right of private defense should not extend to inflicting more harm than actually necessary, thereby emphasizing the concept of proportionality in private defense. This is analogous to Section 99 of the IPC.
In the case of Emperor v. Mammun, the accused men had severely beaten up a man who was cutting rice on their field at night. The victim suffered grievous injuries and later died. The accused claimed the protection of private defense. The Court denied the protection of private defense to the accused as there was sufficient time to report the matter to the public authorities.
Private Defense Extends to Causing Death
Section 38 enumerates the circumstances under which the right to private defense could extend to voluntarily casing the death of the perpetrator under the following circumstances;
- An assault which causes the apprehension that death will be consequence of such an assault
- An assault which reasonably causes the apprehension that grievous injury will be the consequence of such an assault;
- An assault with the intention of causing rape
- An assault with intention of gratifying unnatural lust;
- An assault with the intention of unlawfully confining a person and which causes reasonable apprehension that the person will not be able to seek recourse to the public authorities for his release.
- An act of throwing or administering acid on a person or attempt to do so which reasonably causes apprehension that grievous injury will be the consequence of such an act.
The person exercising the right of private defense should not be the aggressor and there should be no other reasonable way of mitigating the threat. This section is analogous to Section 100 of the IPC.
In the case of Yogendra Moraji v. State(1979), the court held that there must be no reasonable means to escape or retreat for a person facing the imminent danger of grievous bodily harm except by the use of force. Only in such circumstances the right of private defense could be used.
Private Defense extends to causing harm other than death
Section 39 states that the right to private defense extends to causing death only in circumstances mentioned under Section 38 and in no other instance. However, the right of private defense extends to causing any harm apart from death in other circumstances subject to the conditions under Section 37.
In the Mohinder Pal Jolly v. State of Punjab (1978)case, the factory owner had fatally shot a worker who had thrown a brickbat at him. The court held that the owner could not use private defense in this case as there was no reasonable apprehension of death or grievous injury. This provision is analogous to Section 101 of the IPC.
Commencement of Private Defense
Under Section 40 of the BNS, the right of private defense commences as soon as there is reasonable apprehension of danger to the body due to an attempt or threat to commit the offence even if it has not been committed. It is not necessary for the actual attack to take place. The apprehension needs to be reasonable and not based on remote or unreasonable factors. This provision is analogous to Section 102 of the IPC.
Private Defense of Property extends to causing death
Under Section 41,the right to private defense of property might extend to causing the perpetrator in certain circumstances;
- Robbery;
- Housebreaking post sunset and before sunrise;
- Mischief by fire or any other explosive substance on a tent, building or vessel which is used as a place for human dwelling or custody of property;
- House trespass, theft or mischief under certain circumstances which reasonably causes apprehension that death or grievous hurt will be the consequence in case of failure to exercise private defense.
The right of private defense could only be exercised by the owner of the property who is in actual possession of the property. This provision is analogous to Section 103 of IPC. In the Mithu Pandey v. State(1966) case, the accused had resisted the collection of fruits from his property. During the altercation, the accused used force that resulted in the death. The court held that the accused was entitled to private defense under Section 103 of the IPC.
Private Defense of Property extends to harm other than death
Under Section 42 of the BNS, the right of private defense of property will not extend to causing death except under the conditions mentioned in Section 41. In circumstances other than the ones mentioned under Section 41, the right of private defense will extend to causing harm other than death. This is analogous to Section 104 of the IPC.
Commencement of Private Defense of Property
Under Section 43, the commencement of private defense of property will begin at different stages for different offenses. It will commence when there is reasonable apprehension of danger to the property. In the case of theft, it will continue until the offender has retreated or either the help of public authorities has been obtained or if the property has been recovered. In the case of robbery, it will continue as long as the offender causes or attempts to cause to any person death, hurt or wrongful restraint or if there is a fear of death, hurt or wrongful restraint. In the case of criminal trespass or mischief, it will continue as long as the perpetrator continues in the commission of criminal trespass or mischief. Lastly, in the event housebreaking after sunset and before sunrise, it will continue as long as the house trespass cause by such housebreaking continues.
Right of Private Defense against deadly assault when there is risk of harm to an innocent person
Under Section 44, a person can exercise private defense against an act which causes the reasonable apprehension of death or grievous injury even if such an exercise of private defense could cause harm to an innocent person. For example – when a mob is attacking a person and it reasonably causes an apprehension of death, the person can exercise private defense even if there is a high possibility of causing harm to innocent persons. This is analogous to Section 106 of IPC.
CONCLUSION
The right to private defense has been thoroughly recognized under the Indian criminal system. It has to be exercised only in cases where the person has no other alternative. The force used in private defense has to be proportional to the imminent danger and use of disproportionate force would not render the accused the protection of private defense.
Contributed By : Kritavirya Choudhary (Intern)