This article has been written by Poornanand Ghali, A 4th year BA LLB, Law student studying at K. L. E Society Law college chikodi. The Article explains about right to private defence under newly enacted criminal Law Bhartiya Nyay Sanhita (BNS), 2023.
Introduction:
Right of Private defence is also known as self-defence, this provision allows individuals to protect themselves, their property and others from unlawful attacks.
Chapter III (General Exceptions) from Section 34 to 44 of the Bharatiya Nyaya Sanhita, 2023 provide for Various Provisions Relating to the Right of Private Defence. Section 34 deals with things done in Private Defence. Section 35 provides for Right of Private Defence of the body and property. Section 36 deals with Right of private defence against act of a person of unsound mind, etc. Section 37 deals with Acts against which there is no right of private defence. Section 38 provides for when right of private defence of body extends to causing death. Section 39 deals with when such right causing any harm other than the death. Section 40 deals with Commencement and continuance of right of private defence of body. Section 41 deals with when right of private defence of the property extends to causing death. Section 42 provides when such right extends to causing any harm other than death. Section 43 deals with commencement and continuance of right of private defence of property. Section 44 deals with right of private defence against deadly assault when there is risk of harm to innocent person.
Private Defence: Meaning and Nature:
Law confers right on every individual to defend his life, liberty and property, when he is confronted with an imminent danger or unlawful aggression. Right of Private Defence means “committing an offence in exercise of one’s own right to defend/protect his life, liberty or property.”
E.g.: ‘P’ attacks ‘Q’ to kill him. Q, in order to save himself, kills P. Here Q is said to have exercised his Right to private defence. Q can take the defence of Right of Private Defence to get exemption from criminal liability.
- It is important to note that the right of private defence is not an absolute in nature rather contingent upon the exercise of a genuine apprehension of harm. Likewise, it has certain limitations, such as necessity to act in good faith and avoid the use of excessive force. Likewise, it has limitations, such as the necessity to act in good faith, apply the defence attack in proportion to attacking power, and hence cannot apply excessive force.
The Right of Private Defence is designed with a social purpose and should be exercised within certain limits and hence, it is recognised in every civilised system of law.
Against whom the right of private defence is available:
If we see in ordinary prudence a person tries to protect mainly two things those are either own and another’s body or own or another’s property. Keeping this in mind, the provision of the right to private defence in BNS 2023 is available against:
- Body
- property
Purpose of right of private defence:
The right of private defence is a mechanism for self-preservation and the protection of body and property, particularly when law enforcement is unavailable or out of reach.
The law relating to private defence is based on the following principles:
- Everyone has the right to defend one’s own body and property and also to defend other’s body and property at the time of immediate necessity.
- The right cannot be exercised to cause harm to another as revenge. In other words, the right of private defence can be used as a shield and not as a sword.
The basic principle underlying the doctrine of the right to private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property (Dharma v State of Haryana. JT 2007 (1) SC 299)
Key Conditions and Limitations of Private Defence under the BNS
- Imminent Threat: The right of private defence applies only when there is an immediate and real threat. If there is no any immediate and real threat then this provision cannot be invoked.
- Proportionate use of Force: Whatever force used in self-defence must be correspondent to the level of threat faced.
- No Right to Retaliate: The right to private defence is strictly a protective measure, not a justification for revenge. It can only be exercised to prevent an imminent attack, not as an excuse to retaliate once the threat has subsided.
Legislative Framework of the Right of Private Defence:
Things done in private defence.
Section 34 provides Nothing is an offence which is done in exercise of the right of private defence. It merely indicates that nothing is an offence which is done in the exercise of such right.
Test: whether in a particular set of circumstances, a person legitimately acted in the exercise of right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the Court must consider all the surrounding circumstances.
No private defence in a free fight:
In certain situations where both sides can be convicted for their individual acts, normally no right of private defence is available to either party and they will be guilty of their respective acts.
Right of private defence of the body and of property
Section 35 states that every person has a right, subject to the restrictions contained in section 37, to defend-
- His own body, and the body of the any other person, against any offence affecting the human body.
- The property movable or immovable, of himself or of any person, against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Right of private defence against act of a person of unsound mind, etc.-
Section 36 speaks about when an act, which would otherwise be a certain offence, is not that offence, 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 were that offence.
Illustration: A, a person of unsound mind, attempts to kill Z; A is guilty of no offence. But Z has the same right of private defence which he would have if Z were sane.
Limitations on the Right of private Defence:
Section 37 lays down the limitations on the exercise of the right of private defence- (1) Acts against which 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.
- 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.
- In cases in which there is time to have recourse to the protection of the public authorities.
(2) 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.
Right of Private defence Causing Death
Section 38 speaks about the right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
- An assault with the intention of committing rape.
- An assault with the intention of gratifying unnatural lust.
- An assault with the intention of kidnapping or abducting.
(f) An assault with the intention or of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release
(g) An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
Case: Karamat Hussain vs. Emperor, AIR 1938 Lah. 269: In this case, the accused, in order to save his sister from merciless beating by her husband intervened and killed him. It was held that the act accused wea entitled to right of private defence under such circumstances.
Case: R vs. Rose (1884) 15 cox cc 540: In this case, the accused shot and killed his father, whom he believed to be cutting the throat of his mother. The accused was allowed the right of private defence to protect his mother against his father’s act.
When harm other than death may be caused.
Section 39 states that if the offence be mot of any of the descriptions specified in section 38, the right of private defence of the body does not extend to voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death.
Commencement and continuance of the right of private defence of the body
Section 40 states that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence through the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
When right of private defence of the property extends to causing death.
Section 41 States that the right of private defence of property extends, under the restrictions mentioned in section 37, to the voluntary causing 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: –
Firstly: – Robbery
Secondly: – House-breaking by night;
Thirdly: – Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
Fourthly: -Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
When such right extends to causing any harm other than death.
Section 42 States that if the offence committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 37, to the voluntary causing to the wrong-doer pf any harm other than death.
Commencement and continuance of the right of private defence of property.
Section 43 says the right of private defence of property,
- commences when a reasonable apprehension of danger to the property commences;
- against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered;
- against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues;
- against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief;
- against house-breaking after sunset and before sun rise continues as long as the house-trespass which has been begun by such house-breaking continues.
Right of private defence against deadly assault when there is risk of harm to innocent person.
Section 44 says that 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 of harm to an innocent person, his right of private defence extends to the running of that risk.
Illustration: P is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. P commits no offence if by so firing he harms any of the children.
The burden of proof in the right of private defence:
As per rule of evidence, it is the burden on whom to prove the facts, is on one who asserts those facts, except in some situations. In the case of right of private defence, it is always the obligation of a person to prove that his acts were exercised in the right of private defence.
Conclusion:
The right of private defence or self-defence is the right that is available to individuals to self-defend. It is available to protect either own or other bodies and either own or other’s property. An individual can make the death of assailants in certain circumstances. The rights of private defence are available only when there is reasonable apprehension. A person cannot claim the right of private defence when his acts fall under section 37 of BNS, which deals with certain restrictions like one should contact public authority if he can, harm should be used in proportion, and if the act is done by a public officer in good faith. A person can kill a person when there is reasonable apprehension in regards to protecting either his body or property or another’s body or property. But his act should be justifiable. The burden of proof that the act done was in the right of private defence is on one who asserts.
