Right of private defence is provided under the provisions of the Indian Penal Code (IPC). This right is available to defend one’s own body or the body of another person, or the property of oneself or of another person. In certain situations, right to private defence can even extend to the causing of death of the assailant.
Suppose an assailant is preparing to assault you. Now, for exercising your right of private defence, should you wait for the assailant to first cause an injury to you by assaulting you, or you can exercise this right in anticipation?
Well, the answer to this question is available in the legal provisions of the IPC as well as in the judgments of the Supreme Court.
Firstly, Section 102 of IPC lays down as under:
“102. Commencement and continuance of the right of private defence of the body.—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 though the offence may not have been committed; and it continues as long as apprehension of danger to the body continues.”
Thus, it is clear that the right of private defence can be exercised as soon as a reasonable apprehension of danger to the body arises from even an attempt or even a threat to commit the offence, though the offence may not have been committed. Thus, it is not necessary for a person to wait for an injury being caused by the assailant before exercising the right of private defence to repel such assault. He can exercise his right of private defence against the assailant as soon as such reasonable apprehension is there.
In the case of Deo Narayan v. State of U.P., (1973) 1 SCC 347, the High Court had convicted the appellant broadly on the basis that it was only if the complainant’s party had actually inflicted a serious injury on the accused that the right of private defence could arise justifying the causing of death. The Supreme Court set aside the order of the High Court and observed that:
“What the High Court really seems to have missed is the provision of law embodied in Section 102 of the IPC. According to that section 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, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right.”
It is thus clear that the right of private defence can be exercised even though no injury has been caused by the assailant, but there should be a reasonable apprehension of danger to the body arising from an attempt or threat to commit the offence, though the offence may not have been committed. The threat, however, must reasonably give rise to the present and imminent danger, and not remote or distant danger. As made clear by the Supreme Court, one does not have wait for the assailant to first cause an injury for the purposes of exercising one’s right of private defence if there is a reasonable apprehension of an assault, of an imminent danger.
