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Report No. 42

4.61. Section 103, clause first.-

Section 103 enumerates the cases in which the right of defence of property may extend to the causing of death. The first is robbery.

4.62. Section 103, clause secondl.-omitted.-

Clause secondly of the section mentions house-breaking by night, but not lurking house-trespass by night which is as severely punishable as house-breaking by night. It is often difficult to decide whether the offender has committed lurking house-trespass or house-breaking. This point, however, becomes unimportant, as we are recommending certain amendments in Chapter 17 where under house-breaking by night will cease to be a separate offence. For that reason, we propose to omit clause secondly. All aggravated forms of criminal trespass will be governed by the general provision in clause fourthly, under which the test broadly speaking, is whether death or grievous hurt is a likely consequence.

4.63. Section 103, clause thirdl.-amplified.-

We consider that in clause thirdly, (i) mischief by explosive substance should be added as it is just as dangerous as mischief by fire; (ii) mischief by fire or explosive substance committed on any vehicle should be added; and (iii) places of worship should also be included along with dwellings.

We considered a suggestion to add mischief in respect of public property the object being to cover mischief to property used or intended to be used for the purposes of the Government, a local authority or a corporation established by or under a Central Provincial or State Act, or a Government company as defined in section 617 of the Companies Act, 1956, where such mischief is committed by intentional destruction of, or damage to, to the property and is likely to result in general danger, loss of human life or other grave consequences. We, think, however, that clause thirdly is adequate for the purpose, and do not recommend any such addition.

4.64. Section 103, clause fourthly.-

Clause fourthly of section 103 raises no controversy. We propose to substitute 'criminal trespass' for 'house-trespass' in this clause, as we think that there is no need to confine it to house-trespass.

4.65. Section 104.-

As proposed above in section 101,1 section 104 should be suitably modified to bring within its scope those cases where death is caused but not voluntarily.

1. See para. 44.59, above.

4.66. Section 105, first paragraph.-

The first paragraph of section 105 provides that the right of private defence of property commences as soon as a reasonable apprehension of danger to property commences. Unlike section 102, section 105 does not state that the apprehension of danger may rise from an attempt or threat to commit the offence. We considered a suggestion to bring section 105 in line with section 102. We do not, however, see any need to amend the first clause of section 105 in the absence of any practical difficulty.

4.67. Section 105, second paragraph.-

The second paragraph of section 105 provides that the right of private defence against theft continues (i) till the offender has effected his retreat with the property of (ii) either the property has been recovered or the assistance of public authorities has been obtained. The first alternative denotes the primary and usual point of termination of the right of defence. But if before that point is reached, one of the two events mentioned in the second alternative takes place, then that event (recovery of the property or obtaining the assistance of public authorities) terminates the right. Thus, of the two alternative situations, the earlier one becomes the point of termination. The present wording does not bring out this idea with sufficient clarity, and we therefore, propose a slight verbal change to make it clear.

Incidentally, we note that the view expressed by Mayne1 that the right of private defence is revived after retreat (in the sense that if the properly is found in the possession of the wrong-doer, then the right of defence would revive for the purpose of its recovery has not appealed to the Courts.

We also note that the words "effected his retreat" are vague and courts have occasionally found it necessary to point out that they are not easy of application. It is however not easy to devise a better form of words to express the idea.

Our attention was also drawn to the right of recapture of chattels which is recognised2 in England in the law of torts as a permissible species of self-help, though recent authority3 on the subject is scanty. We do not, however, consider it wise to insert in the Code any provision on the subject. Such a provision may, if abused, create more problems than it would solve.

1. Mayne Penal Code, (1867), p. 75.

2. Winfield Torts, (1967), p. 511.

3. For a historical survey, see Branston Forcible re-capture of chattels, (1912) 28 LQR 262.

4.68. Section 105, third paragraph.- No change is needed in the third paragraph of section.

4.69. Section 105, fourth paragraph.-

As to the fourth paragraph of section 105, we noticed that it does not provide for cases where the offence is yet in the stage of attempt. If a reasonable apprehension of danger to property arises from an attempt to commit the offence, the right to defend the property commences, but how long does it continue? We do not, however, think it necessary to make any amendment to clarify this point. In the first place, the first paragraph of section 105, which deals with commencement of the right, is silent about attempt, and it would not be appropriate to refer to attempt in a pointed way in the fourth paragraph. Apart from that, we think that, in practice, cases of attempt will hardly present any difficulty.

An alternative suggestion was to add a provision in the first paragraph to the effect that the right continues so long as the apprehension of danger to the property continues. But such an amendment, which will then govern all the remaining paragraphs of section 105, where the point of termination is defined on lines different from continuance of apprehension of danger.

4.70. Section 105, fifth paragraph.-

It is proposed to omit the fifth paragraph of section 105 as it deals with house breaking by night which is not proposed to be retained as a separate offence.

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