Opinion

When a person has a right of private defence?

We all know that the right of private defence is absolutely necessary for a person but we don’t know when a person has a right of private defence or when a person can take a plea of self defence? Suppose a person commits crime and when police tried to take him into their custody then he killed them. Now can he take the plea of self defence? It’s obvious that he can’t wear the cloak of immunity in such cases. Then in what cases apportion should be given the right of private defence? 

Section 97 of Indian Penal Code

section 97 of Indian penal code states that every person has a right of private defence in two cases subject to restrictions which is mentioned under section 99 of Indian penal code. So,under section 97 of Indian penal code a person can defend –

  • his own body against offence affecting the human body as well as others body 
  • his property and others property that is movable and immovable against offence which falls under the definition of theft robbery mischief or criminal trespass or attempt to commit the aforementioned offences. 

So, it can be concluded that under Indian law a stranger can defend a person or property. However, under English Law, there must be a relation between defender and the one whom he defended such as father and his children, husband and wife, master and servant, etc. One thing is to be taken into consideration that a person must apply the required amount of force as a self defence. 

Aggressor can’t take the plea of self defence 

Before we delve into the matter of why an aggressor can’t take the plea of self defence. Let’s see who is an aggressor. An aggressor is the person who initiates and inflicted the harm to the person or property. So, who can he take a plea of self defence if he himself initiated the act? 

In Jaipal v. State of Haryana, the Apex Court held that an aggressor can’t take the plea of self defence. 

Burden of proof 

Burden of proof is usually on prosecution but in some cases, burden of proof is on the accused. So, in case of taking the plea of private defence, an accused is having the burden of proof. 

In Ishwar Singh v. State of Rajasthan (1973), the Supreme Court held that accused have to prove that he used reasonable force to protect in the danger situations. 

 

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