RIGHT TO PRIVATE DEFENCE
Abstract
The right of private defence is a fundamental principle of criminal law which recognizes the natural instinct of self-preservation. It allows an individual to protect their body, the body of others, and property against unlawful aggression when immediate aid from lawful authority is unavailable. The doctrine, enshrined in Sections 96–106 of the Penal Code, 1860, is based on the idea that the law does not expect a person to remain passive in the face of danger. This right, however, is not absolute. It is subject to strict conditions and limitations.
The use of force must be reasonable and proportionate to the threat faced. Deadly force is justified only when there is an imminent apprehension of death or grievous injury. Importantly, the right of private defence cannot be invoked for retaliation, but only for prevention of harm. Private defence serves as both a shield and a safeguard in the criminal justice system. It upholds individual security while maintaining a balance between personal liberty and public order, ensuring that justice does not punish those who act to lawfully protect themselves or others in moments of urgent necessity.
What Is Private Defence?
Private defence is the right of an individual to protect their own life, body, and property, or the life, body, and property of others, from harm or unlawful acts. It allows a person to use reasonable force against someone who commits or attempts to commit a criminal offense, such as an attack, theft, or trespass, provided certain conditions and limitations are met.
The rules governing every Bangladeshi citizen’s right to private defence are stated in Sections 96 to 106 of the penal code of 1860.The right to private defence is a legally protected defensive right that is only available to people, Because this right might be used to defend oneself against an offence, any actions taken to exercise it cannot benefit the attacker. To use the right of self-defence, only a credible apprehension is required. The right to a private defence may be invoked without the offence having been committed in its entirety.
The right of private defense highlight the necessity of a reasonable apprehension of harm, the proportionality of the response, and the limits of the right, such as in Feroz Khan v. State (1960), where the court stressed the need for the force used to be proportional to the threat, and Hamida Banu v. Ashique Hossain (1963), which established that the belief of harm must be genuine and reasonable. The right is also limited by the need to avoid causing harm to innocent persons, except in unavoidable circumstances as defined in laws like the Penal Code, 1860.
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Section 97 of the penal code states, right of private defence of the body and of Property. The right to private defence is split into two parts in this section; the first portion deals with the right to protect one’s person and the second part with the right to protect one’s property. While a trespasser is actively trying to enter the property but hasn’t yet succeeded in doing so, the true owner has every right to remove him or her.
However, if the trespasser has already succeeded in gaining possession and the genuine owner is aware of this, the true owner loses this right. The law stipulates that under these situations, the legitimate owner must evict the trespasser by using the legal remedies at their disposal. Although he is allowed to demonstrate that this right is established or may be upheld based on the prosecution’s evidence, the accused is nonetheless responsible for proving his right to a private defence.
18 DLR (SC) 299; State Vs. Md. Akbar – On a view of the facts as found in this case the High Court was right in allowing to the respondent the right of self defence by use of a fire arm to the point of killing a person when lie was set upon by a body of persons who started to assault him on suspicion that he was a thief. Right of private defence to arrest “any person who in his view commits a non liable and cognizable offence” is restricted to exercise of such right of arrest when such offence is actually seen being committed.
Can the right of self-defence be used to defend a person against someone who is unsound mind?
Section 98, even though any crime committed by a lunatic is not a crime in the eyes of the law, this will not impair your right to a private defence. We are aware that a person who is mentally ill is not subject to punishment for any crime.
Private defence against public servant
Section 99,There is no right of private defence 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 acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
22 DLR (SC) 129 – Use of force in exercise of the right of private defence to the property must not be disproportionate to the which calls for exercise of such a right. Killing a trespasser in the right of private defence cannot be justified when no apprehension of injury to life is imminent from the trespasser.
The landlord without taking possession of his tenanted land in due course of law obtaining consent of the tenant for such possession entered on the land. When the landlord was ploughing the land the tenants instead of reentering (to which they were entitled as they had not acquiesced in such entry) attacked the landlord and deliberately shot him dead.
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
When the right of private defence of the body extends to causing death
Section 100, the right to private defense of the body includes the ability to kill.
The following six requirements must be met to use the provisions of section 100 of penal code,1860.
Firstly.-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly.-An assault with the intention of committing rape;
Fourthly.-An assault with the intention of gratifying unnatural lust;
Fifthly.–An assault with the intention of kidnapping or abducting;
Sixthly.-An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
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In the case of “Mohamed shafi” ( AIR 1934 Lah 620) where the deceased assaulted a man’s wife with the intention of committing rape and the accused inflicted, certain injuries on the decease which resulted in his death, it was held that the private defense covered by clause 3 of section 100 was validly exercised.
28 DLR 341; Esaruddin Mondal Vs. Abdus Sobhan Sarkar – To attack and surround a retreating person is not an act protected by the right of private defence of person or property.
21 DLR (WP) 337; Azmat Khan Vs. State – From the evidence placed on record we find that the appellant thought that he was no match for a duel and decided to escape by retreating. He was chased by the deceased and his companions armed with deadly weapons. After traversing some distance he found it difficult to escape, turned round and fired a shot. In the face of this finding it can be said that the appellant was justified in defending himself against the attack.
Sukumaran v. State (AIR 2019): This case, decided by the Supreme Court of India, established that the right of private defence can be invoked upon a reasonable apprehension of danger, even without the actual commission of a crime. The court found that a forest ranger, in pursuit of sandalwood smugglers, was justified in exercising his right to self-defence when threatened, leading to his acquittal from a murder charge.
Private defence and property
Under the following conditions, the right of private property defence includes the ability to damage or kill an attacker.
Section 103: Right of private defence of property extends to causing death if there is:
1.Robbery.
2.House-breaking by nigh.
3.Mischief by fire on dwelling.
4.Theft, mischief, or house-trespass under circumstances causing reasonable apprehension of death or grievous hurt.
Conclusion
Every citizen has a useful tool in the form of the right to self-defence. This right is in response to the threat and imminence of an attack, not as an act of retaliation. However, individuals may abuse this right. Finding out whether this right has been exercised in good faith or not is exceedingly difficult for the court to do.
The right to private defence is limited to avoiding doing more harm than is required for defence. The facts and circumstances must be taken into account to assess the level of force that was required to be applied.
Author Md . Ragib Afsary Shaheb is a Student, Department of law, Dhaka International University.
