The Tainted Use Of Private Defence
This Blog is written by Paikar Mustafa from Law College Dehradun, Uttarakhand. Edited by Debargha Mukherjee.
Natural instincts of human are not bereft of recognition of law, especially the constructive ones. Natural School of law in jurisprudence based on the evolution of law by humans on their disposition of reasoning and choosing between good and bad. The most celebrated Fundamental right i.e., Right to life and personal liberty traces its origin in inherent natural right available to each and every human being. This right finds express mention in Article 21 of Part III enshrined in the Constitution of India which now stands so liberally interpreted by a judiciary that it covers almost every conceivable human right within its ambit and is expanding day by day. One facet of right to life is to preserve one’s life in precarious situations faced in adversity illegally taking a toll on one’s life. In a democratic welfare state like India, it is the state’s duty to provide for the preservation of the life of its citizens, it does so by making laws, policies, maintaining institutions of police etc. It is this humanitarian approach that the criminal justice system in India recognises the death penalty as a punishment in rarest of rare cases which shocks the conscience of the society. No matter how robust is the vigilante and guard of the state in this regard, the state’s help cannot be availed in each and every situation and therefore the principle of self-help or self-defence is recognised as a rule by the legal system to uphold the right to life. This principle is internationally recognised (Article 51 of the UN Charter) whereby the states can use force in the event of aggression in self-defence. In India, this right is recognised under the Indian Penal Code essentially to prevent oneself from harm endangering one’s life or property.
The right to private defence is provided under Chapter-IV from Section 96 to 106. Section 96 says, “Nothing is an offence which is done in the exercise of the right of private defence”. The language imports the significance of this right and an exclusive reading of this section suggests that any act done in the private defence will have immunity from punishments which otherwise would have been provided for an offence.
Section 97 asserts that subject to the restrictions mentioned in Section 99 every person has a right to defend his own body, the body of another person against any offence affecting the human body and property whether movable or immovable of himself or of another person against theft, robbery, mischief or criminal trespass or attempt thereof. Section 100 enumerates circumstances where the right of private defence of the body extends to causing the death of the assailant.
Any assault which reasonably causes the apprehension of death, grievous hurt or where assault is with the intention of committing rape, gratifying unnatural lust, kidnapping and abduction, wrongful confinement and against an act of throwing or administering acid or attempt thereof which cause the reasonable apprehension of hurt or grievous hurt. Section 103 enumerates offences under which the right to private defence of property extends to causing death.
An offence of robbery, house-breaking by night, mischief by fire on the place used for human dwelling or custody of property and theft, mischief or house-trespass under such circumstances which cause reasonable apprehension of death or grievous hurt.
The sanctity of this right can be understood by virtue of Section 98 and 106. Section 98 says that the right to private defence will be available against the persons of unsound mind. When any act which would be an offence is not an offence because the assailant is incapable by reason of his age, understanding, intoxication, misconception, the right to private defence does not vanish. Any person may exercise his right of private against these persons.
Section 106 says that the right to private defence can be exercised against deadly assault even if there is a risk of harm to an innocent person if such right is exercised. Thus, the law confers the right of private defence above all where any person is faced with the situation of fight or flight and the latter is not an option.
SCOPE OF THE RIGHT
The right to private defence available to a person is not absolute. Section 99 imposes a restriction and enumerates acts against which no right to private defence can be exercised.
Firstly, an act is done or attempted to be done by a public servant acting in good faith under the colour (work) of his office or under the direction of public servant although the act may not be strictly justifiable by law and such act does not cause reasonable apprehension of death or grievous hurt.
Secondly, there is no right of private defence in cases in which there is a time to have recourse to the protection of the public authorities meaning where the help of the authorities can be obtained.
The section further puts an embargo on the exercise of the right of private defence that in no case it extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Thus, the right is of safeguarding oneself and not becoming an aggressor in the course. The right can be understood in the way that it is to disable the assailant from causing any harm to the person or property, the force used in doing so will depend upon the circumstances in which assailant and person exercising the right are met, the means used by the assailant, the state of dominance by the assailant and the reasonable apprehension which is formed in consequence of the assault.
The scope of the right to private defence can be summarised as follows:
1) There is no right of private defence against an act which is not an offence under the Indian Penal Code. However, the exception may be carved out.
2) The right is available only against the imminent threat and danger which is real and present.
3) The right is strictly defensive and not retributive or punitive and does not give licence to the person exercising to cross the limits.
Any person charged with committing of any offence while such offence is committed is done in right of private defence can raise the plea before the court and the burden of proving that the case of the accused comes within exceptions is upon him whereas presented any case before the court, it shall presume the absence of any such circumstances[i].
ABUSE OF THE RIGHT
It is the trite law that the right of private Defence is a defensive right. It is neither a right of aggression nor reprisal. Despite the explicit mention of the restrictions on the right of private defence and the extent to which this right can be exercised, it is not prone to be blatantly abused to escape from the criminal liability. This right is perceived as a ticket to safe passage to elude the punishment for the criminal act.
It has become a fashion to raise the plea of right of private defence is most obvious or clear cases that suggest otherwise. Since the nature of this right is highly subjective, no straitjacket formula could be laid down for applicability or non-applicability except for the provisions already contained in the code. The court has to determine each and every case on its merits, the circumstances, the weapon used, the offence committed, the time-limit, the state of mind of accused, the extent of force used and what might hold true for the right of private defence in one case may not account for the same in others.
The right is meant strictly for the defensive purpose and not for exacting revenge upon others. There are cases where the defenders become aggressors during the course of exercising right and the instinct of disabling the assailant goes to the extent where the defender takes the life of the aggressor in the case when it absolutely not warranted. Some people invoke this right when they themselves are the aggressors in the first place. It is now a settled law that the aggressor cannot claim the right of private defence.
The expression “right of private defence” as such is not defined in the code, it is after the perusal of the forthcoming provisions that an idea of acts which could constitute the acts done in the exercise of private defence can be formed. No test in the abstract for determining what acts will constitute the private defence can be laid down which makes it susceptible to the misuse. Since the accused does not have to call evidence and he can establish his plea by reference to situations arising out of prosecution evidence itself, and the criminal justice system requires the prosecution to prove accusation beyond reasonable doubts, the accused takes benefits of his own wrong by misleading the court. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
However, there are other special exceptions annexed with the definition and commission of the offence, the presence of which would extinct the liability of that offence and mitigate it for the less serious one e.g., exceptions mentioned under Section 300 for Murder proving of which would reduce the offence to culpable homicide, the plea of private defence comes under the general exception and therefore can be pleaded in every offence if legitimately exercised and absolves the accused of any liability because any act done in the exercise of the right to private defence is not an offence and thus any person cannot claim private defence against the act of private defence. This position is seldom misused as there may be circumstances when the act of private defence transcends from being lawful to unlawful by reason of force used excessively or satisfying personal vendetta. Consequently, the right is pleaded and many times prosecution fails to prove which sets an erroneous precedent to be followed.
The right is mostly exceeded in its exercise when the assailant is unarmed and the defender replies with a deadly weapon, here the reasonable apprehension of death or grievous hurt can very be presumed to have caused but the instinct of resistance converts into the attack and in the absence of express act which would constitute private defence the plea is raised without a second thought because the justification of self-acts and purpose behind others’ act is easy to impute.
The judiciary has interpreted the scope of the private defence and set a boundary in the form of guidelines to prevent its misuse and to explain the necessity of the right. The landmark judgment that requires a mention is one of Darshan Singh v. The State of Punjab, wherein the Supreme Court laid down the guidelines and hinted that in the guise of self-defence no one should be allowed to take a toll on other’s life or property for the purpose of taking revenge. The court held that the conduct of the person acting in self-defence to repel an attack cannot be weighed on the “golden scales”
The Court inter alia observed following guidelines:
• The right of private defence is available only to one who is suddenly faced with the necessity of averting an impending threat and not of self-creation.
• It is unrealistic to give an arithmetical measurement of the force employed in defence.
• It is well settled that even if the accused does not plead self-defence, it is open for the court to consider the plea if it arises on the material put on record.
Where there was a gap between the attack on the accused and the counter-attack made on the other party and the accused did not permit the injured persons of the other party to be taken to the dispensary for treatment, the accused persons were not found entitled to any right of private defence.
Restricting the application of the private defence the Court has held that in Free fight between opponents no right to private defence is available to either party and each individual is responsible for his own acts. The court further culls the unmindful use of the right of private defence the exercise of the right of Private Defence is not an offence in return.
The “imperfect” state of the right of private defence so far the code is silent as to what would constitute a private defence has caused a Judiciary to lay down certain guidelines and raise its watch-guard to prevent the misuse, the right continues to be availed by non-deserving in situations unwarranted for the same. The preponderance of probability rule makes it easier for pleading this right as sometimes it becomes a herculean task for the prosecution to prove everything beyond reasonable doubt especially in cases where the attack was initiated by the aggressor but soon it ceased to be the aggressor and the accused becomes assailant in a counter-attack and these modicum left unproved to the satisfaction of the court are wickedly utilized by the accused to bring the verdict in his favour resulting in acquittal. The court encounters such cases fraught of many probabilities and possibilities while the examining criteria remain strict as per law. The courts cannot altogether confine their approach of considering the plea of private defence into a formulary and invite possibilities of happening of injustice to innocent persons. No doubt where the accused sets up a plea of private defence and the court is in doubt whether or not the accused has been able to substantiate completely to its satisfaction the plea set up by him, the accused is entitled to the benefit of the doubt. Au contraire striking the balance the court has held that a plea of right of private defence cannot be based on the speculation and surmises. There must be some evidence to establish the circumstances which necessitated the exercise of such a right.
In all these years since the inception and commencement of the code, the judiciary has evolved the application of the right to private defence from cases that came before the courts and the universality can be generated for many circumstances such as private defence versus private defence, private defence in a free fight, private defence against unarmed, etc. An attempt may be made by the legislature to finally give those rules universally drawn and accepted by the courts into a draft so as to concretize the subject matter pertaining to the right of private defence.
The right of Self- Defence can be used as a shield to prevent an unwarranted attack on a person or property, but it cannot be used as a means to provoke an attack, which means that it must be used as a preventive measure and not as a starting point for an attack. Since mere reasonable apprehension is enough for the exercise of the right of private defence, its commencement, continuation, and end require a careful examination to be gathered from the circumstances, well-accepted precedents, similarity in cases, etc. The right is necessary but used wrongly it could cause grave injustice and a permit to commit crime as can be seen done in most cases. It must be reiterated that the right is for self-preservation and not for acting under malice, anger, or reprisal.