In a civilized democratic society, the defence of the person and property of every individual is the responsibility of the state. It is the duty of every individual who is forced with the apprehension of imminent danger of his person or property to seek the aid of the state but if immediately such aid by the machinery of the state is not available, he has a right to private defence. Self-preservation is a basic human instinct and is duly recognized by the criminal jurisprudence of all civilized societies. All the free, democratic and civilized countries recognized the right to private defence within certain reasonable limits. In India, the Indian Penal Code,1860 codifies the entire law relating to the right to private defence of person and property in section 96-106 including the extent of and the limitation to exercise such rights.
The fundamental principle underlying the doctrine of the right of the private defence is that when an individual or person is faced with a danger and immediate aid for the state machinery is not available, that individual is entitled to protect himself and his property. The same was quoted by the Supreme Court of India in Dharam v. State of Haryana (2007). The right of private defence is available to everyone but it can be only used by an individual when he or she is suddenly confronted with the necessity of an averting an impending danger and not of self-creation. Only a mere reasonable apprehension is enough to put the right of self-defense into operation and its co-terminus with the duration of such apprehension. In exercising such right, the force used by the accused ought not to be disproportionate or much greater than necessary for the protection of the person or property. Also accused need not prove the existence of the right to private defence beyond the reasonable doubt.
The law does not require a citizen to behave like a coward when confronted with an imminent unlawful aggression. There is more degrading to the human spirit than to run away in face of danger. The right of self-defense or private defence is thus designed to serve a social purpose and deserve to be exercised within prescribed limits.
While providing this right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretense for killing. A right to defend does not include right to launch an offensive, particularly when the need to defend no longer survived. The means and the force a threatened person adopt at the spur of the moment to escape from danger and to save himself or his property cannot be weighed in golden scale. It is neither possible nor prudent to lay down abstract parameter which can be applied to determine as to whether the means and force adopted by the person was proper or not. Answering this question Supreme court of India in Dharam v. State of Haryana said that it depends upon a host of factors like the prevailing circumstances at the spot, his feelings at that time, confusion or excitement at the time etc. Also, the right private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.
Supreme court in Munney Khan v. State observed that: the right of private defence is codified by in the section 96-106 of Indian Penal Code have to be read together to have a proper grasp of the scope and limitation of this right. By enacting this section, the authors of the IPC wanted that these rights should be exercised in good faith for the purpose of repelling unlawful aggression.
The post has been contributed by Mr.Subham Saurabh, a student of Himachal Pradesh National Law University, Shimla.
Image from here