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Legal aidself defense

Law for Self-Defense in India

By October 29, 2018 March 15th, 2019 No Comments

Self defence is one of the assets that one should posses to be at the safer side. But it is very important to know what the law is. According to the Indian Constitution, every individual has been given the Right to defend under section 96 to 106 of the Indian Penal Code.  These provisions under the Indian Penal Code gives authority to a man to use necessary force against wrong doer for the purpose of protecting ones own body and property and also another’s body and property, when immediate aid from the state machinery is not readily available and in doing so he is not answerable in law for his actions.

 

Let’s dive deep into the understanding the sections of IPC in detail.

Section 96:

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.

 

Section 97:

This Section of Indian Penal Code divides the right of private defence into two parts. first part deals with the right of private defence of person and second part with the right of private defence of property. This right extends not only to the defence of one’s own body or property but also to defend the body and property of any other person. Even a stranger can defend the person or property of another person and vice versa.

 

Section 98:

It assumes that the right to private defence from its very nature admits of no exception since it is the right of preservation of one’s life and property as also another’s life and property against the world at large. The right of defence of the body exists against all attackers, with or without mens rea.

 

Section 99 :

There is no right of Private defence –

i) against the acts of a public servant acting in good faith.

ii) against the acts of the those acting under the authority or direction of a public servant.

iii) where there is sufficient time for recourse to public authorities.

iv) the quantum of harm of that may be caused shall in no case be in excesses.

 

Section 100:

To invoke this section following four conditions must exist.

i) The person exercising the right of private defence must be free from fault in bringing about encounter.

ii) There must be present, an impeding peril to life or of great bodily harm, rape, unnatural lust, kidnapping or abduction, wrongful confinement etc.

iii) There must be no safe or reasonable mode of escape by retreat, and

iv) There must have been a necessity for taking the life.

 

Section 101:

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

Thus, under this section, any harm short of death can be inflicted in the exercise of the right of private defence in any case which does not fall within the provisions of Section 100.

 

Section 102:

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

As of the second aspect the right continues till such apprehension of danger to the body continues. This law does not command that to exercise such a right one must wait up to the time when the first blow on the body falls. The right gets vested as soon as reasonable apprehensions of danger to the body arises either by an attempt or a threat of an offence relating to body though the offence may not have been committed.

 

Section 103:

The right of private defence 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 offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely –

 Robbery ;

 House-breaking by night;

 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;

 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 defence is not exercised.

 

Section 104:

This section is a corollary of section 103. It says that where the offence of theft, mischief or criminal trespass has been committed or attempted but the description are different from those enumerated in section 103 of the Code; the right of private defence of property extends only up to the extent to voluntary causing of any other harm than death.

The relationship of this section with section 103, both dealing with defence of property, is similar in nature to that of section 101 with section 100 of the Code, both dealing with defence of body. Here also the section specifically states that the restrictions mentioned under section 99 of the Code shall have an overriding influence on this right. 

 

Section 105:

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

It is only when he reaches his final destination that he can be said to have retreated. The question whether or not there was enough time for the injured party to have recourse to the protection of the public authorities is always a question of fact depending on the circumstances of each case.

 

Section 106:

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

In other words, with the presence of innocent persons in situations where one is entitled to exercise his right of private defence there is no curtailment in one’s right and he is entitled to use force even at the risk of causing harm to those innocent persons. The only condition is that he can do such a thing only when there is an apprehension of death. If the apprehension is of any other kind but not of death, this section does not give him such a right.

 

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