Published on 18th January 2025
Authored By: Tanya
Bharati vidyapeeth, new law college pune
Introduction:
Self- Défense is a fundamental legal concept in the criminal law which allowing the individuals to protect themselves from any forthcoming harm that any other person causes. The law gives certain rights to an individual to defend one’s life, liberty, and property which may defined under a Private Défense. The rights given to an individual to some extent to protect ourself from initial aggressor. The law regulates a strict rules or regulation on the nature or extent of force that can be used in self-defence’s key principles is that, it’s only available on the aggressor when defendant has a reasonable fear of immediate harm or death. The nature or extent of force must be necessary and proportional to the threat faced.
It is recognised universally as a fundamental human right as it is necessary to maintaining personal safety and dignity. The right become especially significant in such situations, where state protection is delayed. The right to self- defence serves a defence mechanism for criminal prosecution. However, it acts as a shield to protect one’s property, property of another person, liberty against initial aggressor. So, the right to self-defence serves both personal or societal purpose against criminal behaviour while reinforcing the principle that individuals must have a means to protect themselves.
WHAT IS SELF-DEFENSE?
Samuel Dubendorf defines self-defence as “the warding off of evils which tend to a man’s injury, and are threatened by another man[1].
In R. v. Duffy,[2] the court further clarified that the reasonableness of self-defence depends on the specific circumstances. “Duffy, who shot an intruder in his home, was acquitted of murder as the court acknowledged his right to protect himself and his property. However, the force used must always be proportionate to the danger perceived, ensuring that the response is justifiable in relation to the threat.”
United States v. Peterson is often used to teach the self-defence doctrine. In this case, the defendant used a gun to threaten a man trying to steal the windshield wipers from his car. When the man threatened the defendant with a wrench, the defendant shot and killed him. The use of the self-defence doctrine failed here due to the defendant’s status as the initial aggressor.
The defendant was the first to threaten physical force when he threatened the man with a gun[3].
SELF-DEFENSE AS LEGAL DEFENSE
The right of private defines is a fundamental legal concept which gives right to the individuals to protect themselves from any immediate harm or threat. Generally, this act avoids act of killing of harming another person but when there is a reasonable belief of death or any threat then this act came into force to protect one’s life from initial aggressor. Therefore, when an individual faces any feart of physical harm or death, the individual used the force in accordance with the nature and the extent of the force used by the initial aggressor.
This principle is well-defined in criminal laws, such as Bharatiya Nyaya Sanhita, and is fundamental to the legal system’s recognition of self-preservation.
LEGAL FRAMEWORK OF RIGHT TO PRIVATE DEFENSE UNDER BNS[4]:
Section 34-44 defines right to private defence under BNS where the law gives certain rights to the individuals to protect themselves from any immediate harm caused by the initial aggressor.
These sections also provide conditions in clear and comprehensive manner through which the person may lawfully defend themselves or another person.
SECTION-34
ACT DONE IN PRIVATE DEFENSE:
It works on the principle that actions taken in private Défense is not considered as an offense. It means when the individuals exercise the right of private Défense, then no offense will be committed. . Therefore, the rights exist when there is a reasonable apprehension of injury as it also ensures that right to private defence is not misused.
SECTION-35
RIGHT OF PRIVATE DEFENCE OF BODY OR PROPERTY:
Every individual has a right to private defence of body or property to protect:
- Of his own body and body of another person against an offense affecting the human body.
- Of his movable and immovable property and movable and immovable property of another person against an offence of theft, robbery, dacoity, mischief and criminal trespass.
MOVABLE PROPERTY:
It means physical property description except land, things attached to earth, and things what is permanently fasten attach to the earth.
IMMOVABLE PROPERTY:
According to the Transfer of Property Act, Immovable property does not includes standing timber, growing crops or grass.
According to section 3 (26) of the General Clause Act, Immovable property means and includes:
- Land
- Benefits arising out of the land
- Things attached to the earth
- Things what is permanently fastened to attached to the earth
SECTION-36
RIGHT OF PRIVATE DEFENCE AGAINST ACT OF A PERSON OF UNSOUND MIND:
Right of private defence available against the initial aggressors:
Attackers may be
- Child
- Unsound mind person
- Intoxicated person
- Person under mis-conception
- Person unable to understand the nature of the act
SECTION-37
WHEN RIGHT OF PRIVATE DEFENCE IS NOT AVAILABLE
- When there is no reasonable apprehension of death or grievous hurt.
- Against public servant discharging his lawful duty under the colour of his office.
- Not available to the initial aggressor
- When there is a time to take protection from public authority
- Right to private defence in no case available to cause more harm than necessity.
CASE LAW: NARSHANG PATHABHAI (1890)
In this case, the accused received information on evening that the complainant where to trespass on his field on the following day.
All about 3’o clock in the early morning, he was informed that the complainants were already on the field with his friends and there upon he proceeded to the field with his friends and they were made by an attack by the complainants. In a fight, the leader of the complainant- party was killed.
The court held that the complainants being the aggressor and the accused and his friends had the right of private defence.
Where court also observed that accuse were not bound to act on the information received on the previous evening.
SECTION-38
WHEN RIGHT TO PRIVATE DEFENCE EXTENDS TO CAUSING DEATH:
- If assault is of such nature that which creates reasonable apprehension of death.
- If assault is of such nature that creates reasonable apprehension of causing grievous hurt.
- An assault with intention of committing rape.
- An assault gratifying unnatural lust.
- An assault with intention of kidnapping and abduction.
- An assault with intention of wrongfully confining a person and such person is so situated that he is unable to take protection from public authority.
- Throwing or attempt to throw or administer acid which causes grievous hurt.
SECTION-39
WHEN RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH:
If any of the offence is not enumerated U/S 38 then right to private defence of body extends to causing harm other than death.
SECTION-40
COMMENCEMENT AND CONTINUANCE OF RIGHT OF PRIVATE DEFENCE OF BODY:
COMMENCEMENT
When reasonable apprehension of danger to body commences, right of private defence also commences.
CONTINUANCE
When reasonable apprehension of danger to body continues, then right of private defence of body also continues.
COMES TO AN END
When reasonable apprehension of danger to body comes to an end, then right of private defence of body also comes to a end.
CASE LAW: CROWN V ROSS (1884)
The accused shot and killed his father whom he believed to be cutting the throat of his mother.
It was held that the accused had every right to protect his mother against his father acts i.e. cutting of his mother’s throat.
SECTION-41
WHEN RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH:
When there is reasonable apprehension of death or grievous hurt by an act of:
- Theft
- Robbery
- Mischief
- Mischief by fire to any tent, building or vessels
- House trespass
- House breaking
SECTION-42
WHEN THE RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH:
If any of the offence is not enumerated under section 41, then right of private defence of property extends to causing any harm other than death.
SECTION-43
COMMENCEMENT AND CONTINUANCE OF RIGHT OF PRIVATE DEFENCE OF PROPERTY:
COMMENCEMENT
When there is reasonable apprehension of danger to property commences, right to private Défense of property also commences.
CONTINUANCE
- The offender retreated to the property
- Public protection is obtained
- Property has been recovered
SECTION-44
RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT WHEN THERE IS RISK OF HARM TO INNOCENT PERSON:
If there is assault or deadly assault which causes reasonable apprehension of death or grievous hurt and if such person is so situated that he cannot exercise his right of private defence without taking risk of harm to the innocent person then right of private defence extends to that risk.
CONCLUSION
Right of private defence is a legal fundamental human right which is available to any individual universally. The right provides certain rules, regulations and principles through which the individual protects themselves from sudden threat or death caused by the initial aggressor.
This is available to protect individual from any reasonable apprehension of grievous hurt, physical injury or death. It lays down certain nature and extent of force which is necessary to apply in accordance with the force of the initial aggressor. This right is available to individual when the state protection is delayed. This is to protect one’s life or life of another person, property or property of another person.
However, the right to private defence is available for both personal and societal purposes.
References
[1] ‘250883_english_01042024.Pdf’
< https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf > accessed 12 December 2024.
[2] ayush chandra, ‘Analysis of Self-Defense: Legal Framework of the Right of Private Defense in BNS » LegalOnus’ (LegalOnus, 8 November 2024) <https://legalonus.com/analysis–of–self–defense–legal–frameworkof–the–right–of–private–defense–in–bns/> accessed 12 December 2024.
[3] ‘Self-Defense’ (LII / Legal Information Institute) <https://www.law.cornell.edu/wex/self–defense> accessed 12 December 2024.
[4] ‘250883_english_01042024.Pdf’ (n 1).