INTRODUCTION:

The terms 'Private Defence' and 'Self Defence' are synonymous to each other. In fact they
carry one and the same meaning. Latin words, 'Se Defendendo' stands for the same. In the
olden days, when the civilization had not dawned, only one law had its effective play and that
was 'might is right'. With the advancement of society the State took up the task of protecting
the person and property of its subject, but experiences were that the State was exclusively unable to guarantee such protection and thereby its subject were privileged to protect their
person and property by causing injuries, simple and grievous, within their reasonable
restrictions, to them who intended to pose such danger to person and property. Sections 96 to
106 of the penal code state the law relating to the right of private defence of person and
property. The provisions contained in these sections give authority to a man to use necessary
force against an assailant or wrong-doer for the purpose of protecting ones own body and
property as also anothers body and property when immediate aid from the state machinery is
not readily available; and in so doing he is not answerable in law for his deeds.
Self-help is the first rule of criminal law. The right of private defence is absolutely necessary
for the protection of ones life, liberty and property. It is a right inherent in a man. But the
kind and amount of force is minutely regulated by law. The use of force to protect ones
property and person is called the right of private defence1.
150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of private
defence in his draft code with the ambitious project of encouraging a manly spirit among the
natives. The ideal Indian would stand his ground in the face of danger and not hesitate to
defend his own body or property or that of another. He would respond with defensive force to
prevent certain crimes, even to the extent of causing death. As a general idea, the right of
private defence permits individuals to use defensive force which otherwise be illegal, to fend
off attacks threatening certain important interests. Like the defence of necessity, the right of
private defence authorizes individuals to take the law into their own hands2.

1 http://www.legalserviceindia.com/article/l470-Private-Defence.html.
2https://www.academia.edu/1437252/Private_Defence_in_Collection_of_Essays_marking_th
e_150th_Anniversary_of_the_Indian_Penal_Code_Ashgate_2011.

PRIVATE DEFENCE: MEANING AND ITS TYPES:

The expression private defence that has been used in the Indian Penal Code, 1860, has not
been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable
framework for the exercise of the right. Thus in India, the right of private defence is the right
to defend the person or property of himself or of any other person against an act of another,
which if the private defence is not pleaded would have amounted to a crime. This right
therefore creates an exception to criminal liability. Some of the aspects of the right of private
defence under the IPC are that no right of self-defence can exist against an unarmed and
unoffending individual, the right is available against the aggressor only and it is only the
person who is in imminent danger of person or property and only when no state help is
available. The right of private defence is a natural right which is evinced from particular
circumstances rather than being in the nature of a privilege3.
However, the most important principle is that the right of private defence requires that the
force used in the defence should be necessary and reasonable in the circumstances. But, in the
moments of disturbed mental condition, this cannot be measured in golden scales. Whether
the case of necessity exists must be determined from the viewpoint of the accused and his act
must be viewed in the light of the circumstances as they appear on such occasion. Specific
limitations have also been provided for when the right cannot be validly exercised and also
the provision specifies clearly the cases in which the right can extend to the causing of death
of the aggressor. The reasonable apprehension can only be justified if the accused had an
honest belief that there is danger and that such belief is reasonably warranted by the conduct
of the aggressor and the surrounding circumstances. This brings in an iota of an objective
criterion for establishing reasonableness. The imminence of danger is also an important
prerequisite for the valid exercise self-defence4. Thus, there should be a reasonable belief that
the danger is imminent and that force must be used to repel it.

3 www.legalsutra.com//rightprivate-defence/Criminal-Law-Right-of-Private-defence
4 http://laws.puchd.ac.in/includes/theses/2010/20101012155857-Summary%20%20Dharam
%20Pal%20Punia.pdf

NATURE OF THE RIGHT:

It is the first duty of man to help himself. The right of self-defence must be fostered in the
citizens of every free country. The right is recognized in every system of law and its extent
varies in inverse ratio to the capacity of the state to protect life and property of the citizens. It
is the primary duty of the state to protect the life and property of the individuals, but no state,
no matter how large its resources, can afford to depute a policeman to dog the steps of every
rouge in the country. One thing should be clear that there is no right of private defence when
there is time to have recourse to the protection of police authorities. The right is not
dependent on the actual criminality of the person resisted. It depends solely on the wrongful
or apparently wrongful character of the act attempted and if the apprehension is real and
reasonable, it makes no difference that it is mistaken. An act done in exercise of this right is
not an offence and does not, therefore, give rise to any right of private defence in return5.

5 http://www.legalserviceindia.com/article/l470-Private-Defence.html