SECTION 97 IPC - Indian Penal Code - Right of private defence of the body and of property

Every person has a right, subject to the restrictions contained in section 99, to defend:

1. His own body, and the body of any other person, against any offence affecting the human body;

2. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

IPC 97 in Simple Words

In simple words, Section 97 of the Indian Penal Code grants every person the right to defend their own body and the body of others against any offense affecting the human body, and also to defend their own or others' property against theft, robbery, mischief, or criminal trespass.

Cited by

• Darshan Singh vs State Of Punjab and Anr

• Suresh Singhal vs State Delhi Administration

• Sukumaran vs State Rep By The Inspector Of

• Sitaram Besra And Ors vs State Of Bihar

• Ex Ct Mahadev vs The Director General Border

The Indian Penal Code, 1860 (‘IPC’) does not provide a clear-cut, singular definition of the ‘Right of Private Defence’. The concept has been expounded under a set of 10 provisions ranging from Section 96 to 106, IPC - a combined reading of which (basis the factual matrix) can be fashioned into a defence by an accused.

These provisions are embedded under the larger chapter on ‘General Exceptions’ which lays down an array of defences – justifiable or excusable. Any of these defences, once proved during a trial, will have the effect of absolutely absolving an accused of his criminal liability.
 

WHAT IS SECTION 97, IPC?

Right of private defence of the body and of property: Every person has a right, subject to the restrictions contained in section 99, to defend—

First — His own body, and the body of any other person, against any offence affecting the human body;

Secondly — The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

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WHAT IS THE RIGHT OF PRIVATE DEFENCE?

To put it simply, the right of private defence is the right to self-preserve in the face of imminent threat or danger.

This right becomes available for use when one is exposed to threat or danger at the hands of an aggressor/ assailant. The danger or threat should be of such gravity that it becomes absolutely incumbent on the defender to act/react immediately in his defence lest he risks a loss of life or property. The defender must be in dire straits, and his circumstances so pressing that timely police intervention or aid from authorities cannot be availed of so as to avert the impending danger. The defender thus, must be situationally compelled to retaliate and retaliate fast.

However, it is important to note that this right exists only against an act which is recognised as an offence and not any other, which is to say that the threat or danger, as discussed above, posed by an aggressor must be nothing short of an offence.

Additionally, as is apparent from its name, the right of private defence is an act of defence and not of an offence. Therefore, it cannot be exercised as an excuse to justify aggression. The right of self-preservation is inherent in every person but to achieve that end nothing could be done which constitutes an act of definite aggression on an innocent person.

Whether or not an accused had acted within the legal contours of this right requires a delicate weighing of facts and circumstances of each case by the Court.

Unreasonable apprehension on part of the accused about the likelihood of an attack does not entitle him to this right. The apprehension of an attack must be reasonable and palpable. It was held in a case that the distance between the aggressor and the defender may have a bearing on the question whether the gesture amounted to an assault justifying a reaction in private defence. No precise yardstick can be provided to fix such a distance, since it depends upon the situation, the weapon used, the background and the degree of the attack or attempt thereof etc.

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WHAT CAN BE DEFENDED IN THE EXERCISE OF THE RIGHT OF PRIVATE DEFENCE?

Section 97, IPC states that the right of private defence is of two types:

1.     Right of private defence of body –

a.     As per Section 97, IPC it extends to defending one’s own body or the body of another person against any offence affecting the human body as specified under Chapter XVI of the IPC titled ‘Of Offences affecting the Human Body’ ranging from Section 299 to 377, IPC.

b.     As per Section 100, IPC it extends to the causation of death of the assailant if –

• An assault reasonably causes the apprehension that death will otherwise be its consequence

• An assault reasonably causes the apprehension that grievous hurt will otherwise be its consequence

• An assault with the intention of committing rape;

• An assault with the intention of gratifying unnatural lust;

• An assault with the intention of kidnapping or abducting;

• 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;

• An act of throwing or administering acid or an attempt thereof which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

c. As per Section 101, IPC it extends to the causation of any harm except death of the assailant if the concerned assault doesn’t correspond with any of the descriptions of offences enlisted under Section 100, IPC (as discussed under clause b).

d. As per Section 102, IPC it 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 such apprehension of danger to the body continues.
 

2.     Right of private defence of property –

a. As per Section 97, IPC it extends to defending both movable and immovable property of oneself or of another person against the offence of theft, robbery, mischief or criminal trespass (including the aggravated forms of these offences) or any attempt thereof.

b. As per Section 103, IPC it extends to the causation of death of the assailant if the offence or an attempt thereof is –

• Robbery;

• House-breaking by night;

• Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

• Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

c. As per Section 104, IPC it extends to the causation of any harm except death of the assailant if the theft, mischief, or criminal trespass as the case maybe doesn’t correspond with any of the descriptions of offences enlisted under Section 103, IPC (as discussed under clause b).

d. As per Section 105, IPC it commences when a reasonable apprehension of danger to the property commences.

• As against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

• As against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

• As against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

• As against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

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ARE THERE ANY LIMITS TO THE RIGHT OF PRIVATE DEFENCE?

Yes, there are limits to the right of private defence.

These are contemplated under Section 99, IPC.

The exertion of force in terms of its kind and amount, in the exercise of the right of private defence, is minutely regulated by law.

Section 99, IPC lays down the conditions and limits within which the right of private defence can be exercised. The Section gives a defensive right to a man and not an offensive right. That is to say, it does not arm a man with fire and ammunition, but facilitates him to help himself and others, if there is a reasonable apprehension of danger to life and property.

As per Section 99, IPC, a defender has no right of private defence:

1. Against the acts of a public servant or of any person acting under the direction of such public servant provided such public servant or person as the case may be –

a. has acted in good faith i.e., with due care and attention

b. has acted in the exercise of his legal duty though such act or direction may not be strictly justiciable in law i.e., such act should not be illegal but may be irregular. For example, acting in blatant disregard to jurisdiction will not entitle the public servant to claim the benefit of this section but acting in erroneous exercise of it, will.

c.has not done or attempted to do an act that causes reasonable apprehension of death or grievous hurt in the defender.

2. Where there is sufficient time for recourse to public authorities; and

3. Where the measure of force exerted by the defender in the exercise of this right exceeds the harm that may be necessary for the purpose of defence. In other words, the right must be exercised in proportion to the harm inflicted or attempted to be inflicted.

However, it must be noted that the Court gives due weightage to the fact that in the moments of an apprehensive and panic-stricken mental state, this cannot be measured in golden scales.

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4-POINTS TO REMEMBER ABOUT THE RIGHT OF PRIVATE DEFENCE

1. The right is not dependent on the actual criminality of the assailant. It depends solely on the wrongful or apparently wrongful character of the act attempted. If the apprehension is real and reasonable, it makes no difference that it is mistaken. See, Section 98, IPC.

2. If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. See, Section 106, IPC.

3. It is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts.

4. As per Section 105, Indian Evidence Act, 1872, the burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.
 

WHY DO YOU NEED A LAWYER IN CASES RELATED TO SECTION 97 OF THE INDIAN PENAL CODE?

Being charged with a crime, whether major or minor, is a serious matter. A person facing criminal charges risks severe penalties and consequences, such as jail time, having a criminal record, and loss of relationships and future job prospects, among other things. While some legal matters can be handled alone, a criminal arrest of any nature warrants the legal advice of a qualified criminal lawyer who can protect your rights and secure the best possible outcome for your case.

If you're facing criminal prosecution, a criminal lawyer can help you understand:

• The nature of the charges filed;

• Any available defenses;

• What plea bargains are likely to be offered; and

• What is expected after trial or conviction.

This is why it is important to have a criminal lawyer by your side to help you when charged with a crime as heinous as the one mentioned under section 97 of the Indian Penal Code.