Self Defense in Criminal Law

Aditi Singh | Army Institute of Law, Mohali | 20th September 2020

Introduction

Adopted from the Latin Term “se defendendo” meaning self-defence (or Private defense) is a form of a justificatory defense in situations wherein an individual doesn’t have the means or resources to take the support of state machinery to defend their person or their property. Such circumstances have to involve a grave or imminent danger to the particular individual. This right may even extend to causing death of the person posing such grave or imminent threat albeit it is subject to restrictions so as to stop people from misusing it with a mala fide intent. Hence, there is a need for the defensive force being used to protect one’s self, property or another person, be reasonable in nature.  Self defense is available not only under Criminal Law but also under Common Law or Torts. 

The right to private defense attracts a rather robust application of the law to the facts as is required since a lot of cases, in which the plea of self defense is taken, a cavalier approach is adopted without much of an attempt being made to analyse the law before applying it to the facts which emerge^[1]. Therefore, the application is mostly limited to finding of facts.

It is pertinent to note that the doctrines of self-defense are qualified by the requirements of retreat^[2]. However, in the cases where the person claiming exculpation is a contributor to the assault or the use of force, it is deemed to be a requirement for the individual to retreat.  Furthermore, the exercise of this right should never be malicious or vindictive, if so, it would be deemed repugnant to the very concept of private defense.

Self Defense and The Indian Penal Code, 1860

Chapter IV of the Indian Penal Code, 1860 (hereinafter, ‘the IPC’)^[3] defines ‘General Exceptions’, further classifying “of the Right of Private Defense” separately under Sections 96 to 106. These provisions deal with not just defense of the person, but extend to defense of the property as well. 

Although the expression, ‘self-defense’ or ‘private defense’ has not particularly been defined in the IPC^[4], the judiciary has determined control and a foundational basis for the exercise of this right in a justiciable manner depending on the case. Notwithstanding that the Apex Court has observed that, “it is neither a possibility nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not.”^[5] Factors like the prevailing circumstances, situation at the spot, feelings at the relevant time, confusion all of which depending on the nature of the offence or assault has to be taken into consideration. 

Section 96

Encapsulating the main rule on private defence the section lays down that, “Nothing is an offence which is done in the exercise of the right of private defence.” Herein the section doesn’t define the expression^[6], albeit, it is clearly understood that the right isn’t absolute and has been defined as a defensive right since it’s neither a right of aggression nor of reprisal. Furthermore, Section 96 has to be read with S. 99, for its scope to appear definitive. For instance, it shouldn’t be a case where the exercise of the right is disproportionate to the injury that is to be averted and shouldn’t exceed its legitimate purpose^[7].

Section 97

Section 97 lays down the Right of private defence of the body and of property. In order for this right to arise, there must be an offence committed, therefore, the section recognizes the right of a person not only to defend “his own or the body of any other person”^[8], it also embraces the “protection of property (movable or immovable)”, whether one’s own or another person’s against certain specified offences, namely theft, robbery, mischief, criminal trespass or an attempt of the same. Dividing the defence into two parts of—(i) person and; (ii) property, it limits the same to the point where its application becomes a categorical necessity.

Section 98

The section defines, “the Right of private defence against the act of a person of unsound mind.” The essentials for an act to not be an offence which would otherwise have been an offence includes it to be committed—

1. By reason of youth.
2. By the want of maturity of understanding.
3. By the unsoundness of the mind.
4. By Intoxication.
5. By reason of misconception on part of that person.

For instance, the right of private defence against a person attempting to cause the person harm under the influence of madness. 

Section 99

The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99^[9].

S. 99 is an interesting amalgamation of two distinct themes^[10]. One aspect deals with the limits placed on the right of private defence while the other one is concerned with the right of private defence against public servants. The clauses provide limitations on the right if there’s an absence of ‘reasonable cause of apprehension of death or grievous hurt’ and further, the act^[11] or direction^[12] is by a public servant acting in good capacity under office. However, the act shouldn’t be illegal.

Furthermore, the subject matter of S. 99(3) and S. 99(4) is closely similar since both specify what the law expects people to do when they are threatened with violence. Herein, the former provides for the unavailability of the right when there is time for recourse to the protection of public authorities^[13]. And the latter encapsulates the proportionality of the force rule^[14] i.e. the force used by the person claiming the right doesn’t exceed to the point where more (than necessary) harm is being caused in the name or purpose of defence. Section 99(1), 99(3) and 99(4) were held to be reasonable limitations in exercise of the right to private defence in the case of Puran Singh and Ors. v. State of Punjab^[15].

Additionally, the right to private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation^[16]. It has been observed by the court in the case of Laxman Sahu v. State of Orissa^[17]that, “Necessity must be present, real or apparent”.  

Section 100 and Section 103

S. 100 and S. 103 deals with the situation arising as a result of voluntary cause of death as a result of right of private defence of the body and property respectively. S. 100 categorize the “offences which occasion the exercise of the right” into seven broad types having the assault cause:

1. Reasonable apprehension of death as a consequence.
2. Reasonable apprehension of grievous hurt as a consequence.
3. Intention of committing rape.
4. Intention of gratifying unnatural lust.
5. Intention of kidnapping or assault.
6. Intention of wrongfully confining without recourse to public authorities^[18].
7. Act of throwing or administering acid^[19].

On the other hand S. 103 provides four categories to extend the right of private defence as voluntary causing death under the offences of:

1. Robbery;
2. House breaking at night;
3. Mischief by fire on a human dwelling or custody of property.
4. Theft, mischief, or house-trespass giving reasonable apprehension of death or grievous hurt.

The other limbs of S. 100 and 103 specify types of danger without express reference to reasonable apprehension of those dangers^[20].

Section 101

S. 101 encapsulates that the right of private defence extending to the infliction of harm other than death on the assailant. Herein, the section elaborates on the fact that if the offence isn’t specified in S. 100 the voluntary cause of death won’t be in the ambit of the right to private defence, albeit, any harm other than death would be included under the limitations imposed by S. 99. 

Section 102 and Section 105

It was held by the Apex Court that, “the scope and width of private defence is explained in Sections 102 and 105 IPC, which deal with commencement and continuance of the right of private defence of body and property respectively.”^[21] The sections (102 and 105), similar to S. 100 and 103 specify the “commencement and continuance” of the right of private defence of the body and property respectively. Section 102 provides the commencement of the right of private defence which does as soon as reasonable apprehension of danger to the body arises despite the offence not being committed and a threat or attempt has taken place. Furthermore, this danger to the body continues. S. 105 provides for the same thing in the case of danger to the property, against: theft, robbery, criminal trespass or mischief, house-breaking by night^[22]. The right lasts so long as reasonable apprehension of the danger to the body continues^[23].

Section 104

Similar to S. 101, S. 104 defines the right of private defence as underlined and elaborated under S. 102 i.e. it extends to causing any harm other than death.

Section 106

Section 106 encapsulates—“the right of private defence against a deadly assault when there is risk of harm to an innocent person.” It provides that in the case of an assault which causes the reasonable apprehension of death, if the person claiming the defence cannot exercise the said right without the risk of harming an innocent person right of private defence extends to the running of that risk.  

Conclusively, the basic grounds of the right to private defence is that the necessary corollary here is that the violence which the person defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. Furthermore, it is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. 

Conclusion

The burden of proof in the case of plea of self-defence lies on the person claiming the same under S. 105 of the Indian Evidence Act, 1872. The Supreme Court has held that, “The burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence.”^[24]

A distinct approach towards the eleven sections in place in the IPC is that the law on private defense is untidy and convoluted under the Act. Granted that this weakness has been acknowledged by the Code framers as^[25], “we are inclined to think that it must always be one of the least exact parts of every system of criminal law”.

^[1] Lee Kiat Seng, Two Aspects of Private Defence, 8 SAcLJ 343, 343 (1996).

^[2]The Editors of Encyclopaedia Britannica, Self-Defense, Encyclopaedia Britannica (Apr. 12, 2018), https://www.britannica.com/topic/self-defense-law.

^[3] Act 45 of 1860.

^[4] See, V. Subramani and Anr., v. State of Tamil Nadu, (2005) 10 SCC 358.

^[5] Dharam and Ors., v. State of Haryana, (2010) 4 SCC (Cri) 617.

^[6] V. Subramani Case, (2005) 10 SCC 358.

^[7] Dr. P.K. Pandey, Right to Private Defence in India, 16 Law Exam Times 23, 28 (2017).

^[8] The genre of offences affecting the human body is covered by Chapter XVI of the Penal Code.

^[9] Supra, note 7. 

^[10] Supra, note 1.

^[11] Indian Penal Code § 99(1) (1860).

^[12] Indian Penal Code § 99(2) (1860).

^[13] Indian Penal Code § 99(3) (1860).

^[14] Indian Penal Code § 99(4) (1860); It defines, “extent to which the right may be exercised”.

^[15] (1975) 4 SCC 518

^[16] Ibid.

^[17] AIR 1988 SC 83.

^[18] The section elaborates the provision as, “under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to public authorities for his release”. 

^[19] Act 13 of 2013.

^[20] Stanley Yeo, Bringing Clarity to Private Defence: The Singapore Experience, 3 NUJS L. Rev. 33, 39 (2010).

^[21] Sikandar Singh v. State of Bihar (2010).

^[22] Indian Penal Code § 105 (1860).

^[23] Jai Dev v. State of Punjab, (1963) 1 Cri LJ 495.

^[24] Salim Zia v. State of U.P., AIR 1979 SC 391; Munshi Ram v. Delhi Admn., AIR 1968 SC 702; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478. 

^[25] T.B. Macaulay, J.M. Macleod, G.W. Anderson and F. Millett, A Penal Code prepared by the Indian Law Commissioners 82 (1838).