Private Defence under IPC

Meaning of Private Defence under

Private defence allows a person to undertake otherwise unlawful acts to repel unlawful aggression against the body or property of themselves or others. Section 34 BNS states that “nothing is an offence which is done in the exercise of the right of private defence.” In other words, actions taken in legitimate self-defence are legally excused when necessary in the face of imminent danger. This right applies only when there is an immediate threat and no timely public authority intervention is reasonably available.

Therefore, the State's main responsibility is to keep its people and their possessions safe. However, a person has the right to use force to defend themselves against harm or injury in circumstances where there is an urgent and inevitable threat and no public aid is available.

Essential Elements of Private Defence under IPC

Expectations of Injury

When there is a realistic anticipation of harm or risk to oneself, another person, or property, one has the right to private defence. The threat needs to be real and not just hypothetical or speculative.

Commission of an Unlawful Act

The use of private defence is limited to responding to illegal actions. The claimant must be facing certain listed offences as specified by the BNS, such as assault, robbery, housebreaking, mischief, or criminal trespass.

Use of Force

When defending oneself, one must employ force in proportion to the threat. It shall not go above and beyond what is deemed reasonably required to fend off the attack or stop damage. To protect others or themselves, defenders should try to do as little harm as possible.

Lack of choice

When there is no realistic chance to request protection from public authorities or when circumstances prevent prompt legal response, private defence is acknowledged.

Existence of Threat

Private defence is allowed as long as there is a threat or risk. The right to private defence expires when the threat has passed, and using force after that may no longer be warranted.

Not using excessive force

When defending oneself, one should only use as much force as is required to fend off an attack. If the defender does more injury than is reasonably necessary, they could be held liable.

Scope of the Right of Private Defence under IPC

According to Section 97 of the Indian Penal Code, every citizen is entitled to protect their own body, the body of another, and their property, whether it is movable or immovable, against crimes including larceny, theft, robbery, and felonies, as well as attempts to commit such crimes. However, Section 99 of the IPC outlines specific restrictions that apply to this privilege.

The first principle is self-help, which denotes a person's obligation to assist oneself. Following it is a social obligation that results from empathy to safeguard other people and their belongings.

According to Section 98 of the Indian Penal Code, every individual has the same right to private defence against an act that they would have if it were a crime in the real world if the person performing it is too young, ignorant, drunk, or misguided to be considered an offence.

Furthermore, per Section 106 of the IPC, a defender's right to private defence also includes accepting the risk of doing so if they reasonably suspect a death-threatening attack and are in a position where using that right could endanger or harm an innocent party.

Provisions of Private Defence Under IPC

Below given are the provisions of private defence under the IPC

Section 97 of IPC – Private Defence of Property and Body

Every person has the right to protect their own body or the body of another against any offence injuring the human body under Section 97 of the Indian Penal Code. In addition, they are entitled to defend their immovable or movable property from criminal trespass, theft, robbery, and mischief.

The right to self-defence is restricted to what is essential and should not go beyond what is required to repel violence. The individual using this privilege must reasonably fear that the offender would harm them.

When an offence is committed or attempted against the person exercising this right, or against any other person, the right to private defence may be used. The defence of one's own body and property is covered by the right of private defence, as is the defence of another person's body and property.

But only in cases when the trespasser hasn't yet completed their task does the right of the genuine owner to remove them from the property exist. The law requires the rightful owner to take legal action to remove the trespasser from the property if they have successfully taken possession and are aware of this.

In the case of Parichhat v. State of MP

In this case, after the deceased attacked their father on the head with a lathi, it was determined that the accused had overreached their right to private defence when they struck him in the chest with a ballam.

Section 98 – Private Defence Against a Person Committing an Act Who is of Unsound Mind

According to Section 98 of the Indian Penal Code, every individual has the same right to private defence against an act that they would have if it were considered an offence, even if it is not deemed to be so for a variety of reasons, including youth, lack of understanding or maturity, intoxication, or any misconception on the part of the person committing the act.

According to Section 98, one’s ability to exercise the right to private defence against an individual does not have to be hindered by their physical or mental state. Regardless of an attacker’s intention or mental state, they are all entitled to the right to private bodily defence.

This indicates that the right to private defence can still be used even in cases where an attacker is protected by a legal exception or exemption due to the danger and risk their actions entail. This guarantees that, regardless of an attacker’s legal status or exemption, the right to private defence is meaningful and may be used when there is an actual threat from them.

Section 99 of IPC – Act Where No Right of Private Defence Exists

Even though a public servant acting in good faith under the guise of their official duty may not have been properly justified by law, the right to private defence under the IPC does not apply when there is no credible fear of death or serious harm.

Similarly, even though the order may not have been precisely legal, there is no right of private defence when the act is carried out or attempted under the supervision of a public official working in good faith and representing their authority. When there is enough time to seek the protection of the public authorities, the right to private defence cannot be used. It is crucial to remember that exercising one's right to private defence should not lead to greater damage than is required for defence.

Conditions under which there is no Rights of Private Defence

Here are the conditions under which there is no right to use the provisions of Private Defence under IPC-

• Actions done by Public Servants
• Actions done under the authority of a Public Servant
• When there is a choice of using the state machinery
• If the actions or harm exceeds the limit of what was necessary for defence

Moreover, the right of Private defence for a Public Servant is not absolute and there are certain conditions under which the right will not apply. They are-

• The actions of a Public Servant should be in good faith
• The actions done by a Public Servant should be according to the Law
• The actions of Public Servants should be under the authority of the office

The activities themselves must not be unlawful, and there must be good reason to assume that they were carried out by public servants or others acting under their direction in the legal performance of their duties. The applicability of this section is contingent upon good faith; infallibility is not required; instead, proper care and prudence, as specified by Section 52 of the Indian Penal Code, are required.

Section 100 of IPC – The Right of Private Defence of Body Leading to Death

In certain situations, the right to private defence of the body permits the willful infliction of damage or death upon the attacker. Among these situations are:

• When the victim has apprehension of death
• When the victim has apprehension of causing grievous hurt
• An act of committing rape
• An act of gratifying unnatural lust
• An act of kidnap or abduction
• It is an act of wrongfully confining a person and there’s no way of seeking help from state machinery

Section 101 of IPC – Right of Private Defence Extends to Causing Harm Other Than Death

The right to private defence does not include the ability to kill the attacker if the offence does not fit into any of the categories mentioned in the section above. It does, however, allow for various forms of harm to be inflicted upon the attacker within the limits given in Section 99 of the Indian Penal Code, excluding death.

In the case of Mohinder Pal Jolly v. State of Punjab

The owner of the plant, who had shot and killed a worker when the workers threw brickbats, was not entitled to the protection of the right of private defence. The court ruled the factory owner’s claim to the right of private defence was rejected by the court, which found that there was no realistic fear of death or serious injury in that circumstance.

Section 102 of IPC – Continuance and Commencement of Private Defence of Body

Even if the crime has not yet been committed, the IPC’s right to private defence of the body is activated when there is a legitimate fear that the body may be in danger as a result of an attempted or threatened crime. This right is in force as long as there is a continuing fear of harm. But, the fear of danger needs to be grounded in reality rather than fantasy. It is crucial to remember that there must be an actual attack for there to be a right of private defence; additionally, the risk must be real and urgent.

Section 103 of IPC – Private Defence of Property Leading to Death

If the offence that gives rise to the exercise of this right fits into specific categories, the right of private defence of property permits the voluntary infliction of death or injury on the wrongdoer, subject to the restrictions outlined in Section 99. These include theft, mischief, or house trespass under circumstances that reasonably cause fear of death or great harm if the right of private defence is not exercised, and robbery, housebreaking at night, mischief by fire committed on a building, tent, or vessel used as a human dwelling or for property storage.

Section 104 of IPC – Right of Private Defence of Property Causing Harm Other Than Death

Section 104 of the Indian Penal Code (IPC) states that theft, mischief, or criminal trespassing—but not any of the other offences listed in Section 103—are the offences that give rise to the exercise of the right to private defence. Causing death is outside the purview of the right to private defence. It does, however, extend to harming the wrongdoer in ways other than death, subject to the limitations outlined in Section 99.

In the case, V.C Cheriyan v. State

A road had been illegally built through a church’s private land by three deceased people and others. They were the subject of an ongoing criminal case. The accused, who were connected to the church, blocked the road with barricades.

The accused fatally stabbed the three deceased individuals when they tried to take down these barriers. The Kerala High Court recognized the church members’ right to self-defence, but it did not grant them the authority to murder defenceless people whose actions did not violate Section 103 of the IPC.

Section 105 – Continuance and Commencement of Private Defence of Property

When there is a legitimate fear that the property is in danger, the right to private defence of that property is activated. Depending on the type of offence being committed, this right has varying durations.

It is crucial to remember that you can only use your right to private defence of property if you have no other choice except to ask for help from the government. Furthermore, the right of private defence to defend the property is forfeited by the genuine owner once a trespasser has effectively gained ownership of the contested territory. When it comes to defending property they are not legally in control of, trespassers are not entitled to a private defence.

Section 106 of IPC – Private Defence and Assault When There Is Risk of Harming an Innocent Person

The clause depicted in the example provided makes it clear that an individual who is being attacked by a mob and reasonably fears for their life has the right to private defence, even if using that right could endanger innocent bystanders. To defend oneself, the defender in this situation is permitted to take the chance of hurting those innocent people.

This clause eliminates any uncertainty or reluctance the defender might have about using their right to private defence in situations where doing so could endanger innocent people. It guarantees that the defenders can take the required precautions to keep themselves safe, even in cases where there may be a risk to those who are not part of the attack.

Scope of the Right of Private Defence under BNS

Under Section 35 BNS, every person has the right to defend:

• Their own body or the body of another person against any offence affecting the human body (e.g., assault).

• Their movable or immovable property (or that of another) against theft, robbery, mischief, criminal trespass, or attempts to commit such offences.

Provisions of Private Defence Under BNS

Below are the Provisions of Private defence given under the BNS

Section 34 – Things Done in Private Defence

Meaning:

This section says that any act done in exercising the right of private defence is not an offence. In simple terms, if you legitimately act to defend yourself or another from an unlawful threat, that act won’t be treated as a crime. This is the foundational provision recognising self-defence.
Example: If someone attacks you and you push them away to stop harm, it isn’t an offence.

Section 35 – Right of Private Defence of Body and Property

Meaning:
Every person has the right to defend:

1. Their own body, or the body of another person, against any offence affecting the human body (like assault); and
2. Their own property, or the property of another, against offences like theft, robbery, mischief or criminal trespass (or attempts to commit such offences).

Section 36 – Defence Against Insane or Intoxicated Aggressor

This ensures that even if the attacker is insane or intoxicated (and hence not fully responsible), the right to defend remains the same. The defender’s right doesn’t change just because the attacker lacks mental capacity.

Section 37 – Acts Against Which There Is No Right of Private Defence

Meaning:
This section puts important limits on the right of private defence:
No right of private defence against:
(a) Acts that do not reasonably cause fear of death or grievous hurt when done by a public servant acting in good faith under legal duty.
(b) Acts done by direction of a public servant in good faith.
(c) Situations where there is time to seek help from the proper authorities instead of using self-defence.

Section 38 – When Right of Private Defence of the Body Extends to Causing Death

Meaning:
While normally you can only use proportionate force, this section allows lethal force in very serious cases if the attacker’s actions give rise to a reasonable fear of death or grievous hurt, or involve very serious crimes such as:

• An attack that might cause death
• Assault likely to cause grievous hurt
• Assault with intent to rape, kidnap, wrongfully confine, etc.
• Acid attacks (or attempts) threatening grievous hurt or death

Section 39 – When Such Right Extends to Causing Any Harm Other Than Death

Meaning:
If the situation doesn’t fall under Section 38 (serious life-threatening attacks), you cannot kill the attacker — you can only cause harm short of death.

Section 40 – Commencement & Continuance of Right of Private Defence of Body

Meaning:
Your right to defend yourself begins as soon as you reasonably fear danger, even if an attack has not yet started — and continues as long as that fear persists.

Section 41 – [Often covers Defence of Property Against Theft etc.]

Note:
This section deals with specific protective rights against property crimes like theft. It sets out when force can be used to prevent the removal of property.

Section 44 – Right of Private Defence Against Deadly Assault, Even if an Innocent Person May Be Harmed

Meaning:
Even if acting in self-defence against a deadly attack, and your action unintentionally risks harm to an innocent person, your act is still justified if there was no practical way to defend without that risk.
Example: Firing at a mob attempting murder, even if innocents are around, may still be lawful self-defence.

Limitations and Misuse of the Right Under BNS

• A person cannot claim private defence if they have provoked or initiated the conflict without lawful cause.
• Excessive or retaliatory force beyond what was necessary to repel the danger invalidates the right.
• Harm to third parties arising out of disproportionate response may attract criminal liability.

Conclusion

With the implementation of the Bharatiya Nyaya Sanhita, 2023, India’s criminal code has modernised and codified the right of private defence in Sections 34–44 BNS, replacing IPC’s Sections 96–106. While the core principles remain—protecting individuals and property against unlawful aggression—the BNS provides clearer structure and updated language on when, how, and to what extent private defence may be lawfully exercised, including explicit treatment of threats from incapacitated attackers, limits against lawful acts, and guidance on serious defence scenarios