RIGHT OF PRIVATE DEFENCE
Subject to, certain limitations the law gives a right to every person to defend his body or property, or the body or property of another person against unlawful aggression. He may protect his right by his own force or prevent it from being violated. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. This use of force to protect one’s property and person is called the right of private defence.
RIGHT OF PRIVATE DEFENCE OF BODY :
Section 97 lays down that every person has a right, subject to the restrictions contained ih Section 99, to defend his own body and the body of any other person, against any offence affecting the human body. Section 102 of the Code provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence the offence though, the offence may not have been committed; and it commences as long as such apprehension of danger to the body continues. It is clear from the wording of the section that the right commences and continues as long as danger to body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequent thereon an apprehension of danger, but it should not be a mere idle threat. There must be reasonable ground for the apprehension.
The right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant if the offence occasioning the exercise of the right be of any of the following descriptions, viz.,
(i) an assault” causing reasonable apprehension of death-even injury to innocent persons in private defence against an assault is excusable,
(ii) assault causing reasonable apprehension of grievous hurt;.
(iii) assault with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting or wrongfully confining a person causing reasonable apprehension that he will not be able to have recourse to the public authorities for his release.
For the purpose of exercising the right of private defence physical or mental incapacity of the person against whom the right is exercised is no bar.There is, however, no right of private defence:
(1) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant or by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law;
(2) in cases in which there is time to have recourse to the protection of the public authorities ;
(3) nor does the right of private defence extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. (S. 99).The measure of defence must bear proportion to the quantum of force used by the attacker and which it is necessary to repeL Thus where the accused who was attacked by another with a Kirpan succeeded in disarming his opponent by taking away hls weapon and showered blows after blows including the serious ones on the chest, it was held that he must be held to have exceeded the right of self defence and was guilty under section 304, part 1 of pakistan penal code.
An act done in exercise of the right of private defence is not an offence and does not, therefore, give rise to any right of private defence in return. The right is not available in respect of anticipated action. Defensive action is justified only when positive overt act of damage or harm is set in motion. The law does not confer a right of self-defence on a man who goes and seeks an attack on himself by his own threatened attack on another’ -an’attack which was likely to end in the death of the other.The right of self-defence conferred- by the law or Preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right.