Limitation on the Right of Private Defence in India – Explained!

(i) Usually an act done by a public servant is presumed to be lawful; (ii) even if it is not lawful law will set right the wrong done by him; (iii) is in the interest of the society that public servant should be given some protection in the discharge of their official duties to maintain an orderly and sound administration.

But in order to secure the protection of the section it is necessary that the act done or attempted to be done by a public servant must be (i) in good faith, and (ii) under colour of his office, (iii) though that act may not be strictly justifiable by law.

However, a person is not deprived of the right of private defence against an act done, or attempted to be done, (i) by a public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant; or (ii) by the direction of a public servant, unless he knows or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority, under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Where some armed persons went to harvest certain crop forcibly and during the assault which they made on the owner of the crop the accused who was on the side of the owner gave a fatal blow with a bhala to one of the members of the intruding party, reasonably apprehending grievous hurt to or death of the owner, the accused could not be said to have exceeded his right of private defence.

The very fact that the accused used his bhala against the deceased would show that the deceased might have been using a more deadly weapon than the others. In this case Ramjilal v. State of Rajasthan a group of police reached in a village at night to release a woman and hand it over to the father of the woman.

The act was resisted by villagers. The fact was brought before the Court of law. The High Court upheld that the proceeding of police was totally illegal and beyond its jurisdiction. So they cannot claim the protection of Section 99(i) of I.P.C.

Section 99 further lays down that 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. The right of private defence is subject to the limitations of actual necessity.

More harm than necessary is not permissible. The right of private defence does not permit the wanton infliction of harm but contemplates only the use of such force as is absolutely necessary to compel the aggressor to desist. Of course, it may not be possible for a person who exercises right of private defence to coolly calculate or modulate his steps or to weigh in golden scales the exact amount of force really necessary.

Another provision in Section 99 is that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. This is based on the principle that no man has the right to take the law into his own hands for the protection of his person or property, if there is a reasonable opportunity of redress by recourse to public authorities.

The complainants’ party had entered the land in possession of the accused and were trying to plough it. According to the High Court the accused should have taken recourse to the public authorities instead of indulging in a free fight with the complainant’s party in view of the limitations imposed under Sections 99 to 102, I.P.C.

The Supreme Court held that it was not possible to agree with this somewhat broad statement of the law. The right of private defence of person or property is subject to the following limitations:

(1) If there is sufficient time for recourse to the public authorities, the right is not available.

(2) More harm than necessary should not be caused.

(3) There must be a reasonable apprehension of death or grievous hurt to the person or damage to the property concerned.

It is not the law that a person when called upon to face an assault must run away to the police-station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor and run to the police authorities.

Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary.

The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation.

The accused was an allottee of a quarter but actually he had sublet it. On the date of occurrence the accused went to the quarter duly determined and armed with a knife to force his way into the quarter by driving out the sub-tenants alleging that they were in unauthorised occupation of the quarter.

At first there were exchange of abuses between the accused and the sub-tenant and the aggressor thus started quarrel resulting in a fight between them outside the quarter. The deceased who was inside the quarter seeing the fight came out to the spot whereupon the accused inflicted stab injuries on him ultimately resulting in his death.

It was held that the accused could not take the law into his own hands; if the occupation of sub-tenant was unauthorised, the accused could have approached the Estate Officer or the police for redress but he himself could not go there and demanded possession under show of force. Under the circumstances he was an aggressor and he could not claim the right of private defence of person or property.

Section 99 is not applicable to cases where the initial proceeding and the power under which any public servant purports to act are altogether without jurisdiction, and entirely ultra vires. But it applies to cases where there is an excess of jurisdiction as distinct from a complete absence of jurisdiction, to cases where the official has acted wrongly what he might have done rightly, but not to cases where the act could not possibly have been done rightly.

Cases:

(i) Vyankat Rao:

A subordinate police officer, deputed by the officer-in-charge of the police station to make a search, entered a house in search of property alleged to have been stolen without a search warrant, and was resisted in doing so.

The Court held that even though the officer was not strictly justified in making a search of the house without a warrant, the inmates could not offer resistance especially as the policeman had charged those persons with theft and he was acting in good faith and without malice.

(ii) Gopi v. King:

A Sub-Inspector of Police proposed a search to be made by him, which was not strictly in accordance with Section 165 of the Criminal Procedure Code. The accused pushed him in order to prevent the search. The Court held that the accused was not guilty of any offence and the Sub-Inspector of Police cannot be said to have acted in good faith.

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