Restrictions on right to private defence:
As with any right, the right to private defence is not an absolute right and is
neither unlimited. It is limited by the following restrictions imposed by section 99 -
neither unlimited. It is limited by the following restrictions imposed by section 99 -
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
direction may not be strictly justifiable
by law.
There is no right of private defence in
cases in which there is time to have
recourse to the protection of the public
authorities.
Extent to which the right may be
exercised - The right of private defence
in no case extends to the inflicting of
more harm that it is necessary to inflict
for the purpose of defence.
Explanation 1 - A person is not deprived
of his right of private defence against an
act done or attempted to be done by a
public servant, as such, unless he
knows or has reason to believe that the
person doing the act is such public
servant.
Explanation 2 - A person is not deprived
of his right of private defence against an
act done or attempted to be done by the
direction of a public servant, unless he
knows or has reason to believe that the
person doing the act is acting by such
direction, or unless such person states
the authority under which he acts or if
he has authority in writing, unless he
produces such authority if demanded.
Upon carefully examining this section,
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
direction may not be strictly justifiable
by law.
There is no right of private defence in
cases in which there is time to have
recourse to the protection of the public
authorities.
Extent to which the right may be
exercised - The right of private defence
in no case extends to the inflicting of
more harm that it is necessary to inflict
for the purpose of defence.
Explanation 1 - A person is not deprived
of his right of private defence against an
act done or attempted to be done by a
public servant, as such, unless he
knows or has reason to believe that the
person doing the act is such public
servant.
Explanation 2 - A person is not deprived
of his right of private defence against an
act done or attempted to be done by the
direction of a public servant, unless he
knows or has reason to believe that the
person doing the act is acting by such
direction, or unless such person states
the authority under which he acts or if
he has authority in writing, unless he
produces such authority if demanded.
Upon carefully examining this section,
we can see that the right to private defence is not available in the following conditions -
1. when an act is done by a public
servant or upon his direction and
the act
1. is done under colour of his office
- an off duty police officer does
not have the right to search a
house and right to private
defence is available against him.
A police officer carrying out a
search without a written
authority, cannot be said to be
acting under colour of his office.
If the act of a public servant is
ultra vires, the right of private
defence may be exercised
against him.
2. the act does not cause the
apprehension of death or
grievous hurt - for example, a
police man beating a person
senselessly can cause
apprehension of grievous hurt
and the person has the right of
private defence against the
policeman.
3. is done under good faith - there
must be a reasonable cause of
action on part of the public
servant. For example, a
policeman cannot just pick
anybody randomly and put him in
jail as a suspect for a theft. There
must be some valid ground upon
which he bases his suspicion.
4. the act is not wholly unjustified -
The section clearly says that the
act may not be strictly justified
by law, which takes care of the
border line cases where it is not
easy to determine whether an act
is justified by law. It clearly
excludes the acts that are
completely unjustified. For
example, if a policeman is
beating a person on the street on
mere suspicion of theft, his act is
clearly unjustified and the person
has the right to defend himself.
However, this right is curtailed only if
the person knows or has reasons to
believe that the act is being done by a
public servant. For example, if A tries to
forcibly evict B from an illegally
occupied premises, and if B does not
know and neither does he have any
reason to believe that A is a public
servant or that A is acting of the
direction of an authorized public
servant, B has the right to private
defence.
1. when an act is done by a public
servant or upon his direction and
the act
1. is done under colour of his office
- an off duty police officer does
not have the right to search a
house and right to private
defence is available against him.
A police officer carrying out a
search without a written
authority, cannot be said to be
acting under colour of his office.
If the act of a public servant is
ultra vires, the right of private
defence may be exercised
against him.
2. the act does not cause the
apprehension of death or
grievous hurt - for example, a
police man beating a person
senselessly can cause
apprehension of grievous hurt
and the person has the right of
private defence against the
policeman.
3. is done under good faith - there
must be a reasonable cause of
action on part of the public
servant. For example, a
policeman cannot just pick
anybody randomly and put him in
jail as a suspect for a theft. There
must be some valid ground upon
which he bases his suspicion.
4. the act is not wholly unjustified -
The section clearly says that the
act may not be strictly justified
by law, which takes care of the
border line cases where it is not
easy to determine whether an act
is justified by law. It clearly
excludes the acts that are
completely unjustified. For
example, if a policeman is
beating a person on the street on
mere suspicion of theft, his act is
clearly unjustified and the person
has the right to defend himself.
However, this right is curtailed only if
the person knows or has reasons to
believe that the act is being done by a
public servant. For example, if A tries to
forcibly evict B from an illegally
occupied premises, and if B does not
know and neither does he have any
reason to believe that A is a public
servant or that A is acting of the
direction of an authorized public
servant, B has the right to private
defence.
5, Right to private defence is not available if their is sufficient times for recourse to public authority.
6, Their must be a real reasonable apprehension of death or grievous hurt to the person or damage to the property concern.
7, More harm then that's the necessary should be caused in exercise of right.
