Report No. 156

Clauses 32 to 37

12.24. Under these clauses some of the existing sections relating to right of private defence of persons and property are either sought to be amended or substituted. The law of private defence of person and property in India is codified in sections 96 to 106 based on the concept that the right of self-preservation is a basic one.

The right of private defence must be distinct from the doctrine of necessity though the right of self-defence arises out of the necessity for self preservation. Still the latter is wider for there cannot be a right of self defence in all cases of necessity. The motive of self preservation is inherent in every man. The authors of the 1860 Code, Rattan Lal & Dhiraj Lal Law of Crimes, 23rd Edn., 1987, p. 273, said:

"We propose to excepting from the operation of the penal clauses of the Code large class of acts done in good faith for the purpose of repelling unlawful aggression. In this part of the chapter we have attempted to define as such 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 to accord a latitude to the exercise of this right; and we are ourselves of the opinion that if we have in framing laws for a bold and high spirited people, accustomed to take the law in their own hand, and to go beyond a line of moderation in repelling injury, it would have been convenient to provide additional restrictions.

In this country the danger is on the other side; the people are too little deposed to help themselves. The punishments with which they submit to the cruel depredations of gang murders, dacoities and mischiefs committed in the most outrageous manner by all of us of ruffians, is one of the most remarkable and at the same time most discouraging society in India presents to us.

In these circumstances we are desirous rather to rouse and to encourage a manly trade than to multiply restrictions on the exercise of a right to 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 be the exact line of moderation in resisting a body of dacoits."

If we take the present scenario into consideration, we find that the situation in respect of such crimes noted by the authors has not in any way changed. Therefore, the law of private defence of persons and property based on the right of self-preservation is absolutely necessary.

The existing sections 96 to 106 analyse and delimit the right of private defence. These provisions have very often come up before the courts for interpretation and application. Section 96 states that nothing is an offence which is done in exercise of this right. This right is analysed in the subsequent sections from two aspects, namely, defence of the body and defence of property. Section 97 defines these two aspects while sections 98 and 99 are applicable to both the aspects. Sections 100, 101, 102 and 106 are concerned with defence of the body and sections 103, 104 and 105 are concerned with the defence of property.

The Law Commission in its 42nd Report proposed a rearrangement of the provisions bringing together those relating to the right to defend the body in one section and those relating to the property in another for the purpose of an easier understanding and for facilitating their application. In the Bill no change in respect of sections 97 and 98 is mooted.

Coming to section 99 the Law Commission after having considered the various clauses in section 99 recommended the insertion of a new provision in section 99 so as to make the immunity conferred by section 97 co-extensive with the deprivation of right of private defence and such action in the first paragraph of section 99.

The Law Commission was also of the view that extra protection should be given only when the publi.c servant acts in pursuance of an order of a court of justice. Coming to the third paragraph of section 99, the Law Commission recommended for deletion of the third paragraph. It may be noted that the third paragraph in the existing section 99 lays down a restriction, namely, debarring the right of private defence in cases where there is time to have recourse to the public authority.

However, whether there was sufficient time to have recourse to the public authorities is a question of fact in each case. If this restriction is removed altogether, then even in respect of acts where there is no immediate danger particularly those relating to property, people with impunity may resort to exercise this right even though they had ample time to go to the public authorities for the purpose of averting the danger to the property. Therefore, we are of the view that this restriction should be retained.

Under clause 32 of the Bill the existing section 99 is sought to be substituted and to altogether remove the third clause. Therefore, we recommend that the third paragraph in the existing section should be included in the proposed section and re-arrange the clause.

The existing section 100 justifies the killing of an assailant when apprehension of serious crimes enumerated in several clauses thereunder is caused and they should be read subject to the provisions of section 99. The section lays down that the right of private defence of body extends under the restrictions mentioned in section 99 to the voluntary causing of death or of any other harm to the assailant for an offence which occasions the exercise of the right by any of the descriptions enumerated in clauses 1 to 6.

In these clauses 1 to 6 serious offences like death, grievous hurt, committing rape, unnatural lust, kidnapping or abducting, wrongful confinement are mentioned. The Law Commission, after examining the existing section 100 did not suggest any amendment in respect of 3rd, 4th and 5th clauses. However, minor change is suggested, namely, that in the 5th clause the right to exercise in respect of abducting should be limited where the abduction is punishable under the Code, since abduction by itself is not punishable unless it is committed with one or the other of the intents specified in sections 364 to 369. Under clause 33 of the Bill some more changes have been added.

The clauses are numbered as (a) to (e). Assault with the intention of having carnal intercourse is also added and with regard to abduction it should be one punishable under the Code. However, there is clause (e) which is to the same effect - as clause "sixthly" in the existing section. Therefore, the proposed change is appropriate.

Under the existing section 101 the words "voluntarily causing to the assailant of any harm other than death" are sought to be substituted in clause 34 of the Bill by the words "voluntary causing of any harm other than death or the involuntary causing of the death to the assailant". The Law Commission suggested such a change because there may be cases of involuntary causing of death, for example, death by rash and negligent act. This change appears to be appropriate.

Section 103 indicates as to when a person can act in defence of property and enumerates the offences in clauses 1 to 4 in respect of which the right extends. The right under this section extends not only when the offences thus enumerated are committed but also when an attempt to commit is made. The Law Commission in its 42nd Report noted that clause "secondly" mentions housebreaking by night, but not lurking house trespass by night, which is as severely punishable as housebreaking by night, and that it is often difficult to decide whether the offender has committed lurking housetrespass or housebreaking.

The Law Commission also observed that since certain amendments in Chapter XVII relating to offences against property where housebreaking by night would cease to be a separate offence recommended to omit clause "secondly" also on the ground that the existing clause 4 governs aggravated forms of criminal trespass. Existing section 441 defines criminal trespass, 442 - house trespass, 443 - lurking house trespass, 444 - lurking house trespass by night, 445 - house breaking, 446 housebreaking by night.

These sections were there incorporated in the existing Code, taking into consideration the circumstances prevailing in India. The Law Commission in its 42nd Report while dealing with offences under Chapter XVII that is relating to property recommended deletion of these provisions and introduced a new section 445 under the head "Burglary". We have considered these changes while examining clause 182 of the Bill and are of the view that the changes proposed are salutary.

Consequently, the changes proposed by the Law Commission in respect of clause "secondly" of section 103 need to be incorporated. The Law Commission also recommended that clause 3 relating to offence - mischief by fire - should be amplified including mischief by explosive substances, mischief by fire or explosive substances committed on any vehicle should be added.

In the proposed section 103 of the Bill, there is a new clause (d) relating to the offences of mischief to property, house, or intended to be used for the purpose of Government or any corporation.

Two more new clauses (e) and (f) are sought to be added in the proposed section. Clause (e) includes hijacking of aircraft and clause (f) includes sabotage. While discussing the offence of hijacking under new section 362A, we have indicated that the same need not be incorporated because of the reasons stated in Chapter X. Therefore, here also clause (e) has to be omitted. We may also add that clause (e) was added in conformity with the new section 362A applying to the offence of hijacking of an aircraft. If that section is to be deleted, clause (e) need not be there.

It may be mentioned that in every offence of hijacking, there would be an offence being committed against property or person. To that extent the relevant provisions of right of private defence would be applicable. Under (f), the offence of sabotage is mentioned. In our discussion under clause 180 we have suggested that the new provisions with reference to the offence of sabotage can be retained. Therefore, clause (f) can be retained but may be renumbered as (e).

Under clause 36 a minor amendment to section 104 is proposed. The words "voluntary causing to the wrong-doer of any harm other than death" are sought to be substituted on the same lines as in clause 34 with reference to section 101. These changes can be carried out.

Clause 37

12.25. Under this clause the existing section 105 Is sought to be substituted by a new section bearing the same number. The existing section 105 deals with commencement and continuance of private defence of property. The Law Commission did not propose any change to the section. However, It recommended to omit 5th para. which deals with house breaking by night.

The new section deals with housetrespass which has been considered by us under clause 182 and because of the consequent changes approved thereunder the clause 5 has to be accordingly omitted. In the new section, however, we find clause (c) which also mention hijacking of aircraft. While considering changes in clause 35 with reference to section 103, we observed that clause (e) dealing with "hijacking of aircraft" should be omitted. For the same reason, the words "hijacking of aircraft" in clause (c) in the proposed new section 105 have to be omitted.