Dr.K.

Gowri
 Right of Private Defence
• Right inherent in man, which is the duty to
help himself
• Necessary for the protection of one’s life,
liberty and property
• Kind and amount of force - regulated by
Sections 34 to 44 of the BNS
• Different from Self defence – available for
protecting any other person
 Concept
• Ideal man would stand his ground in the face
of danger and not hesitate to defend his own
body or property or that of another
• Macaulay proposed this right in the code by
encouraging a ‘manly spirit’ during
colonialism
• Sec 34 – Nothing is an offence which is done
in exercise of his right of private defence
• It creates an exception to criminal liability
 Contd.,
• The state has the duty to protect its citizens and their
property from harm. However, circumstances may arise
when the aid of state machinery is not available and
there is imminent danger to a person or his property.
• In such situations, a person is allowed to use force to
ward-off the immediate threat to his or someone else’s
person or property. This is the right of private defence.
• The people are endowed with this right so that they can
defend themselves and their property and not hesitate
due to fear of prosecution.
 Availability

• Right is exercised when there is real and immediate

threat
• Right is protective or preventive and not punitive
• Not for self-gratification - Should not be deliberate
or for retaliation of past injury
• Right commences as soon as reasonable
apprehension of danger arises and continues till the
apprehension continues
• Available only against an offence under BNS
 Right of Private Defence of Body
• Sec. 35
Every person has a right
To defend his own body or
of any other person
Against an offence affecting the human body
• Even a stranger may defend the person or
property of another person
 Extends to causing death – Sec 38
1. causing apprehension of death
2. causing apprehension of grievous hurt
3. with intention of committing rape
4. with intention to gratify unnatural lust
5. with intention of kidnapping or abducting
6. with intention of wrongfully confining a person
7. an act of throwing acid or attempting to throw acid
• Sec.39 - In other circumstances, the defender may cause any harm
except death
• Sec.40 - Right commences as soon as reasonable apprehension of
danger to body arises and continues till the apprehension continues
 Right of Private Defence of Property
• Sec.35 - The right to defend the property
(moveable or immoveable) of himself or of
any other person
• Only mentioned offences not others
• Against offence of or attempt of
-theft,
-robbery
-mischief, or
-criminal trespass
 Extends to causing death – Sec 41
-Robbery
-House breaking after sun set and before sunrise
-Mischief by fire to any building, tent or vessel used as
human dwelling or as place of custody of property
-Theft, mischief or house trespass under circumstances
causing reasonable apprehension of death/grievous hurt

• Sec. 42 - In other cases, right extends to any harm other

than death
 Commencement & Continuation of right
Sec. 43
• Theft
-Offender has effected his retreat with property, or
-Assistance of public authority is obtained, or
-Property is recovered

• Robbery
-Offender causes/attempts to cause death/ hurt/ wrongful restraint, or
-As long as fear of instant death/ instant hurt/ instant personal restraint
continues

• Criminal trespass or mischief

-As long as the offender continues in the commission of criminal
trespass or mischief.

• House breaking by night

-As long as house trespass which has begun by such house-breaking
continues.
Restrictions – Sec 37
The right of defence avails against the police if they
act illegally, but the defender cannot take benefit from
a mistake as to the law of arrest or self-defence
Seizure by public servant without proper notice – Not
justifiable – Even then No right of private defence
Right is available if there is a apprehension of death
or Grievous hurt
No right if there is time to have recourse to
protection of public authorities
Right does not extend to inflicting more harm than
necessary for the purpose of defence
 Against Insane person, etc
• Sec.36 - To exercise the right, the physical or
mental capacity of the attacker is no bar (whether
with or without mens rea)
• Same as against other individuals

 Child
 Insane
 Intoxicated person
 Person with misconception
 Harm to innocent person

• Sec.44 - In case of reasonable apprehension of

death if defender cannot exercise the right
without risk of harm to innocent person
• No restriction on him to exercise his right of
defence and he is entitled to run that risk
Judicial View on Private Defence
• Interpretation of “reasonable apprehension”
• Local courts have overlooked this discretion
conferred upon them and instead opted for a
far too restrictive interpretation
• Nature of the danger wholly according to that
of the accused perception – subjective test
• Avoid Microscopic Scrutiny
 Court Directives

• Vidhya Singh Vs St of Madhya Pradesh

Right of self-defence is a very valuable right, serving a
social purpose and should not be construed narrowly
• Mohinder Pal Jolly v. State of Punjab (1967
CrLJ 102 (Pat))
Workers of a factory threw brickbats from outside the
gates, and the factory owner by a shot from his
revolver caused the death of a worker, it was held that
this section did not protect him, as there was no
apprehension of death or grievous hurt.
 Moti Singh Vs State of Maharashtra

“The person facing a reasonable apprehension of

threat to himself cannot be expected to
modulate his defence step by step with any
arithmetical exactitude of only that much
which is required in the thinking of a man in
ordinary times or under normal
circumstances…”
 Jassa Singh v. State of Haryana
2002 CrLJ 563(SC)

• The Supreme Court held that the right of

private defence of property would not extend
to the causing of the death of the person who
committed such acts if the act of trespass is in
respect of an open land.
• Only a house trespass committed under such
circumstances as may reasonably caused death
or grievous hurt is enumerated as one of the
offences under Section 103. (Section 40 BNS)
• The protective measures must be proportionate to
injury or threat
• The right ends with the necessity for it
State of UP v. Ram Swarup, 1974- The person
exercising the right need not chase the feeling
attacker and then beat him.
• The aggressor cannot claim the right to self-defence
• No private defence against private defence
Deo Narain v. State of UP, 1973- One who goes to
beat the other cannot claim the right
• Even if private defence is not claimed, court may
consider the plea based on material on record
Darshan Singh v. State of Punjab
• Supreme Court laid down Guidelines for Right Of Private
Defence
• 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 defence is designed to serve a social
purpose and deserves to be fostered within the prescribed limit
• 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.”
• It is not needed, that the offence being threatened, has been
committed, and is sufficient if the accused has apprehension
that such an offence is contemplated, and likely to be
committed if he or she does not act
 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.
 Contd.,
• 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.
• 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.
 Filing of charge sheet
• Valummel Thammachan Vs State (1994
CrLJ 1738 (ker))
If the Investigating officer, upon conducting
investigation finds out that the injuries were
administered in pursuance of right of private defence,
it is not an imperative duty of the officer to file the
charge sheet
 Conclusion
• Good weapon in the hands of a citizen
• Should not be misused is subject to certain
restrictions
• Right not a revenge
• Difficult to find the good faith