In this context the authors of the Code observed:
“We propose…………… to except from the operation of the penal clauses of the Code large classes of acts done in good faith for the purpose of repelling unlawful aggression. In this part of the chapter we have attempted to define, with as much exactness as the subject appears to us to admit, the limits of the right of private defence. It may be thought that we have allowed too great a latitude to the exercise of this right; and we are ourselves of opinion that if we had been framing laws for a bold and high- spirited people, accustomed to take the law into their own hand, and to go beyond the line of moderation in repelling injury, it would have been fit to provide additional restrictions. In this country the danger is on the other side; the people are too little disposed to help themselves; the patience with which they submit to the cruel depredations of gang- robbers, and to trespass and mischief committed in the most outrageous manner by bands of ruffians, is one of the most remarkable, and at the same time one of the most discouraging symptoms which the state of society in India presents to us. Under these circumstances we are desirous rather to rouse and encourage a manly spirit among the people than to multiply restrictions on the exercise of the right of self-defence. We are of opinion that all the evil which is likely to arise from the abuse of that right is far less serious than the evil which would arise from the execution of one person for overstepping what might appear to the Court to be the exact line of moderation in resisting a body of dacoits.”
With the above spirit in view, the law of private defence was given a wide scope in the form of eleven sections. Section 96 merely gives a recognition to the fact that whenever something is done in the exercise of one’s right of private defence, it would not amount to an offence. The use of the expression ‘private defence’ in preference to ‘self- defence’ is deliberate and is discussed under section 97 of the Code. No State, however large its resources may be, can provide security to each individual. Consequently, it has to have a law with respect to private defence wherein the scope and limits of the law are clearly indicated.
The same has been done under sections 96 to 106 of the Indian Penal Code also. No State wants its citizens to be cowards. Consequently, every person has a right to resist when attacked. This resistance is possible only when right to use force is given to him by law, and that is what has been done by this section in conjunction with the abovementioned provisions of the Code. With the recognition of the right of private defence this section completely absolves a person from all guilt once the act is proved to be done in such defence.
To come to a just conclusion as to whether an accused has acted in right of private defence the Court must view the situation as a whole. Thus, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by him and the circumstances as to whether he had time to have recourse to public authorities are all relevant circumstances.
This right is not of reprisal or revenge but toward of the threat and imminent danger of an attack. Naturally, therefore, such an imminence being no longer in existence would make the right unavailable. Normally it is the accused, who while pleading such a defence, has to prove that he acted under this right. But where he pleads another defence or does not plead any defence at all but the Court is satisfied that he acted under right of private defence, he is entitled to be given the benefit of this defence.
The reason for this may perhaps be two-fold. Firstly, the Court is to administer justice and, therefore, if it feels on the basis of the circumstances of the case that the accused was acting under right of private defence, it must grant him this benefit. Secondly, it is the lawyer who pleads the case on behalf of the accused and if there has been an honest error of judgment on his part with respect to the choice as to which defence is the most appropriate under the circumstances for his client, and the Court feels that the right of private defence should have been pleaded, the error of the lawyer cannot seal the fate of the accused.
The principle has even been applied to pleas of alibi. If an accused pleads an alibi but the Court feels that facts and circumstances clearly establish that he acted in his right of private defence, the Court would give him that benefit. In V. Subramani v. State of Tamilnadu? the Supreme Court observed that the plea of private defence need not always be taken by the accused, and even if this plea is not taken the Court can consider it if circumstances show that this right was legitimately exercised. However, on facts in this particular case, private defence was not established.
The right of private defence, as the name suggests, is an act of defence and not of offence. Consequently, it cannot be allowed to be used as a shield to justify an aggression. This requires a very careful weighing of the facts and circumstances of each case to decide as to whether the accused had in fact acted under this right. Assumptions without any reasonable basis on the part of the accused about the possibility of an attack do not entitle him to exercise this right.
Duty to retreat
The common law gave everyone the right to use reasonable force in exercise of the right of private defence of person or property of one’s own self or of any other person. While determining as to what would amount to ‘reasonable force’, the common law Courts would insist that if by retreating the accused could prevent the commission of the crime he must do so. It has been felt that this common law principle makes a coward out of a man and, therefore, needed to be changed.
The Criminal Law Act, 1967 in England vide section 3 has now abolished the duty to retreat. It provides, inter alia, that everyone has a right to use reasonable force while exercising right of private defence. The rule is similar in the United States of America. The Indian Courts have also rejected the duty to retreat as provided under the common law even though stray decisions are available wherein the common law rule have been followed.