RIGHT TO PRIVATE DEFENSE
Discuss fully the right of Private defense of body.
The most celebrated article of Indian Constitution i.e., Article 21 provides a very basic fundamental right to each and every individual and this article talks about Right to live a dignified life and on the other hand, this article imposes a duty upon the government to protect this right of each and every person.
That is why, to protect this very basic right, the government has established various law enforcement agencies and enacted numerous laws. But sometimes, it becomes difficult for the state agencies to protect these rights and in such situation, the state has given a right to each and every individual to protect himself or any other person i.e., right of self- defense.
In the leading case of Jaidev vs. State of Punjab (SC 1962), the Hon’ble Court held that in a civilized society, the state is assumed to take care of person and properties of individual. This, however, does not mean that if a person suddenly faces an assault, he must run away and protect himself. He is entitled to resist the attack and defend himself.
Section 96 to 106 of Indian Penal Code, 1860, deals with the provisions of Right of self-defense. According to these provisions, if a person is in danger and he has no time to call the public authorities then in such a situation, to protect himself he can cause harm to the wrongdoer.
In the leading case of State of Orissa vs. Rabindra Nath (1973 CriLJ 1686), the Hon’ble court held that, it is the responsibility of the state to defend a person’s body and property. In the same way, it is duty of every person to take shelter under the machinery of state. But in case, such an aid is not available, he has right of private defense.
According to the provisions of Indian Penal Code, 1860, to exercise this right of private defense, it is not necessary that some harm must be caused to a person. If there is reasonable apprehension that another person will cause any harm then also, he can exercise this right.
But according to the provisions of the Indian Penal Code, 1860, for taking the benefit of this right, there is one condition that the person must cause harm just to protect his body or the body of another person and not to take a revenge. It means that person must cause such harm which is required to protect himself. If person do such a thing, then only, he can claim the benefit of this right but if he causes more harm than required just to retaliate then in such a situation, he cannot claim the benefit of this right.
In the leading case of Sitaram vs. Emperor (55 Ind Cas 476), the Hon’ble court held that a person exercising the right of private defense is entitled to secure his victory as long as the contest is continued. He is not obliged to retreat but may continue to defend till he finds himself out of danger.
According to the provisions of Indian Penal Code, 1860, if any person attacks upon another person, then according to the situation, latter person can cause harm to the former person just to protect himself.
Now one most important question arises here is, “to what extent a victim can cause harm to the wrongdoer?”
According to the provisions of Indian Penal Code, 1860, there is no mathematical formula that can explain the limit of harm which can be caused by victim. It totally depends upon case to case and according to the circumstances, a victim can cause harm to the wrongdoer. Even in some cases, a victim can cause death of the wrongdoer. There are some situations under which a victim can cause death of the wrongdoer and these are as follows: –
• Where the wrongdoer tries to cause death of the victim
• Where the wrongdoer tries to cause grievous hurt to the victim
• Where the wrongdoer tries to commit rape upon the victim
• Where the wrongdoer tries to gratify unnatural lust
• Where the wrongdoer tries to kidnap or abduct the victim
• Where the wrongdoer tries to wrongfully confine the victim and if the victim were wrongfully confined then he could not ask for the help from public authorities
• Where the wrongdoer tries to throw or administer acid to the victim with a view to cause grievous hurt.
In these circumstances, a victim can cause death of the wrongdoer but if the situation does not fall under these categories, then a victim cannot cause death. He can cause any other harm but he cannot cause death.
According to the provisions of Indian Penal Code, 1860, a person can exercise this right of private defense till there is an apprehension of danger. When the apprehension of danger disappears then he cannot exercise this right. If the person still exercises this right even after the cessation of apprehension, then in such a situation, he will be held liable for that act only.