Report No. 42
4.51. Right of defence against irregular acts of public servants.-
The first paragraph refers to an act done by a public servant "though that act may not be strictly justifiable by law". These words have been uniformly construed by the High Courts to be applicable only to those acts which are irregular and not to those which are wholly illegal. For instance, if a sub-inspector of police armed with a search warrant from a magistrate attempts to search the house of a person and is resisted by force, and it is subsequently found that the warrant was without jurisdiction, the sub-inspector cannot successfully raise the plea that there was no right of private defence against his action, even though he may have acted in good faith. The house-owner would be justified in using such force as may be necessary to turn him out of the house.
This uniform judicial view has led to certain anomalies, and has also put public servants executing orders of courts of justice to unreasonable jeopardy in the execution of their duties. Under section 78 of the Code, an act done by a public servant in pursuance of the judgment or order of a court of justice gives him complete immunity from prosecution, even though the court may have had no jurisdiction to pass such judgment or order, provided he, in good faith, believes that the court had such jurisdiction. Though he is thus immune from prosecution for any offence, (if it is eventually found that the order of the court of justice is without jurisdiction), nevertheless, in view of the somewhat restrictive language used in section 99, he runs the risk of being injured as a result of the exercise of the right of private defence by the party against whom he attempts to execute the judgment or order of the court.
4.52. Public servants acting under orders of courts.-
A study of the case-law under the first paragraph of section 99 shows how, in a large number of instances, public servants acting in execution of the court's orders have been badly injured, and the courts have acquitted their assailants on the sole ground that the court's order was without jurisdiction. Whether an order of a court is within its jurisdiction or outside its jurisdiction, is extremely difficult to decide, and, in many instances, there can be no final view in this matter until the dispute is taken up to the highest court.
But a subordinate public servant executing that order should not be put in jeopardy of bodily injury so long as his action is in good faith. Public policy also requires that such protection should be given to facilitate the prompt execution of the court's orders. The orders of a court ought to be implicitly obeyed. We therefore recommend the insertion of a new provision in section 99 so as to make the immunity from prosecution conferred by section 78 co-extensive with the deprivation of the right of private defence against such action in the first paragraph of section 99.
We, however, consider that this extra-ordinary protection should be given only when a public servant acts in pursuance of an order of a court of justice. Where he acts in exercise of what he considers to be the power conferred on him by law, the existing provision will suffice, that is to say, if his action is irregular, there will be no right of private defence; but if his action is illegal, either owing to absence of jurisdiction or any other around, there will be a right of private defence.
4.53. Acts done by direction of a public servant.-
The same view will have to be taken in regard to the right of defence against an act done by the direction of a public servant when that direction is not strictly justifiable by law. The second paragraph of section 99 does not require any change of substance.
4.54. Right of defence and recourse to public authorities.-
With reference to the third paragraph of section 99, we considered it desirable to include in our questionnaire the following question.-
"There is, at present no right of private defence in cases in which there is time to have recourse to the protection of public authorities "(section 99). Do you think that this restriction is necessary or that it should be removed or that it should be modified?"
The views received by us on this question indicated that those in favour of retaining the present restriction were almost the same in number as those in favour of removing it. A much smaller number of persons favoured some modification in the existing provision.
The present restriction on the exercise of the right of private defence is considered necessary by some in view, it is said, of the growing tendency among the public t9, resort to self-help even where the protection of public authorities is available. It is also said that as at present there is increasing evidence of disrespect for law and order, the deletion of this restriction will only increase the number of crimes and will result in lawlessness.
On the other hand, some take the view that present conditions demand that an individual ought to have the right of private defence without waiting for the help of public authorities. It is said that experience shows that nobody can be sure of getting effective protection of the public authorities when sought for and the restriction tends to take away the right itself, and the very purpose of the section is defeated.
In the third category are those who suggest, not too clearly, some modifications in section 99. They point out the possibility of conflict between the third paragraph of section 99 and the second paragraph of section 105 and suggest that if the object of the former is different from that of the latter, the position should be made clear by suitably amending the sections. They also suggest that these two provisions may be combined. Another suggestion is that the condition of there being time for recourse to the protection of public authorities should apply only when the party gets information sufficiently early about the impending attack.
4.55. Deletion of third paragraph recommended.-
As diverse views have been expressed, the choice between retention and deletion of the restriction is not easy to make. We, however, think that from the practical point of view, the balance lies in favour of deleting the third paragraph. The law may not encourage self-help for doubtful ends, but self-defence stands on a different footing. Experience shows that in many cases it is debatable whether there was sufficient time for seeking the protection of public authorities. Recognition of self-defence as a justification for committing an offensive act is on the assumption that "detached reflection cannot be expected in face of the uplifted knife". If so, the law should not expect a person to consider carefully whether there is or is not sufficient time to seek the protection of public authorities. We have not been able to discover any such stringent restriction on the right of self-defence in the criminal codes of any other country. We recommend that the third paragraph should be deleted.
4.56. Section 99 revised.- In the light of the above discussion section 99 may be revised as follows:
99. Restrictions on the right of private defence.- (1) There is no right of private defence against an act which does not reasonably cause an apprehension of death or of grievous hurt, if the act is done or attempted to be don.-
(a) by a public servant acting in good faith in pursuance of the judgment or order of a court of justice, though the court may have had no jurisdiction to pass such judgment or order, provided the public servant believes in good faith that the court had such jurisdiction;
(b) by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law; or
(c) 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.
(2) A person is not deprived of the right of private defence by virtue of sub-section (1).-
(i) in a case falling under clause (a) thereof unless he knows or has reason to believe that the person doing the act is a public servant and is acting in pursuance of the judgment or order of a court of justice or unless that person produces, if demanded, the authority in writing under which he is acting;
(ii) In a case falling under clause (b) thereof, unless, he knows or has reason to believe that the person doing the act is a public servant; or
(iii) in a case falling under clause (c) thereof, unless he knows or has reason to believe that the person doing the act is acting by the direction of a public servant, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces that authority, if demanded.
(3) The right of private defence in no case extends to the causing of more harm than it is necessary to cause for the purpose of defence."
4.57. Section 100.-
Section 100 lists the offences against which the right of private defence of the body extends even to the causing of death of the assailant. It is noticeable that while the first, second and sixth items refer to a reasonable apprehension as to the consequence of the assault, the other three items refer to "assaults with a particular intention.1" We do not, however, consider it necessary to make any amendment in this respect in the third, fourth and fifth items of section 100, since section 102 makes it quite clear that the right of private defence of the body commences as soon as there is a reasonable apprehension of danger to the body from an attempt or threat to commit any of the offences described in section 100.
1. The American Law Institute's Model Penal code even dispenses with the reasonableness of the belief of the person defending against an assault: see section 3.04.
4.58. Fifth paragrap.-amendment proposed.-
The fifth item covers "an assault with the intention of abducting." It has been held that any assault with the intention to abduct a person as defined in section 362 is enough to attract the right of private defence under section 100 and it is not necessary that the abduction must itself be punishable. Thus, if a wife is assaulted in her father's house by the husband with the intention of taking her away by force to the husband's house, the fifth paragraph of section 100 applies.1
An anomaly arises from the fact that, while kidnapping is an offence punishable under section 363, abduction is an auxiliary act not punishable by itself. It is an offence only when committed with one or other of the intents specified in sections 364 to 369. Hence, assault with the intention of abducting may, in some instances, be punishable only under section 352, and it looks anomalous that, for such a simple offence, the assailant may even be killed. While it may be said that the precious right of personal liberty is involved in any abduction, we do not think it proper that an assault with the intent of committing an act which is not an offence should justify defensive action to the extent of causing death to the assailant. We propose to limit the fifth paragraph of section 100 to cases where the abduction is punishable under the Code.
1. Vishwanath v State of Uttar Pradesh, (1960) 1 SCR 646: AIR 1960 SCO 67.
4.59. Section 101.-
Section 101 imposes a restriction as to the voluntary causing of death to the assailant, but permits the voluntary causing of any other harm. It is silent as to the involuntary causing of death, e.g., death by a rash and negligent act. We think it proper to include, within the scope of this section, those cases where death is caused, but not voluntarily.
4.60. Section 102.-
Section 102 which defines when the right of defence of the body commences and how long it may continue requires no change.