Right of private defence cannot be claimed by the attacker. In Laxman v. State of Orissa, the Supreme Court upheld that right to private defence is available only to one who is suddenly confronted with immediate necessity of averting an urgent danger not of his own creation. The necessity must be present, real and apparent.
Three witnesses had heard the cry of the accused for help from his friends for rescue. The cry was that the deceased was beating him. The accused was arrested after five days and at the time of his arrest no injury was found on his person. From this act it cannot be held that accused caused the death of the deceased in exercise of his private defence.
Basis of the right of private defence:
According to Mayne the whole law of self-defence rests on the following propositions —(i) that the State undertakes, and in a large majority of cases is able to protect the individual against the unlawful attacks on their person and property; (ii) that where its aid can be obtained, it must always be resorted to by individual; (iii) that where such a protection cannot be obtained, an individual who is threatened can do everything that is necessary to protect himself; but (iv) that the violence used in the protection must be in proportion to the injury to be averted and must not be used to gratify malice or revenge against the aggressor.
Counter-attack is not private defence:
The counter-attack could in no sense be an attack in exercise of the right of private defence. The right of private defence is preventive, not punitive. In the exercise of this right an injury to property or body can be averted though it cannot be avenged.
Free fight: No Private Defence:
A free fight is one when both sides mean to fight from the start, go out to fight and there is a pitched battle. The question who attacks whom is wholly immaterial and depends upon the tactics adopted by the rival commanders.
It is well settled that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts.
“Private defence is the law of nature which has been restricted to a great extent by the law of the State. Self-preservation is a primary instinct. Nature prompts man to resist and law recognises that he is justified in using such a degree of force as will prevent a repetition”, thus said Parke, j ; The violent self-help of the individual has been replaced by the organised help, the brute force of the State, but it has not been eliminated.’ A substration of violent self-help persists under the sanction of law. The law specifies the circumstances in which and the extent to which such help may be resorted to.
Scope of the right of private defence:
There is no right of private defence under the Code against an act which is not itself an offence under it. An act done in exercise of the right of private defence is not an offence and does not therefore, give to any right of private defence in return/ It is available only against person or persons from whom imminent danger to life is apprehended and not others.
While discussing the scope and limitations of Sections 96 to 106 in Kashi Ram v. State of Rajasthan the Court explained that the right of private defence is codified in Sections 97 to 106 and all these sections will have to be read together to ascertain whether in the facts and circumstances the appellant-accused are entitled to right of private defence or they exceeded the right of private defence.
Only when all these sections are read together, can one get a comprehensive view of the scope and limitation of that right. The position of law is well settled for over a century both in England and India.
No question as to the exercise of the right of private defence can arise unless and until the prosecution has proved what would, but for the exercise of his right, be an offence. If and when the prosecution has established that, then, and then only, the question of the right of self-defence will arise.