TOPIC- Private Defense
Harm inflicted in defense of one’s person, property is justified if it is reasonably necessary. It includes defense of one’s own property, life, but also people close to you like one’s family. Force used must be reasonable and proportionate to the force applied. Moreover force used for prevention of injury and not reprisal. Apprehension is good enough for private defense. Every man has the right to defend himself when it is urgent.
The person may not have to wait till he gets a blow from someone else. He may strike before that. But one is not justified in using sword to repel a blow. But if the person is attacked with a deadly weapon, he can defend himself with any weapon. “When a man strikes at another within a distance capable of the latter being struck to resist it, and he is justified in using such a degree of force as will prevent a repetition”. But in case of verbal provocation blow is not justified. The person on the defensive can use as much force as is reasonably necessary.
In case of private defense necessity has to be proved. In case of defense of property the property has to be possessed by the person. It means that if a person is staying in a house on rental then he has the right to defend the property in which he is staying. The owner also has such right but he must be in possession of the property.
A person who does not have possession of the land may use reasonable force against persons who obstruct him in carrying out his own duties. In case of trespass one must use reasonable force. One must not use deadly dogs, spring guns to protect his property. If such measures are used then the plaintiff or the injured may get compensations. The principal of private defense extends to killing of other animal if it is reasonably necessary in order to save his property, life and his animals.
Killing is justified if the defendant proves that the animal (as well as humans) was attacking, damaging his property, imminent risk of such attack or damage & there was no means other than shooting, or stopping the injury from being committed. In case of injury to third party private defense may apply if the defendant can prove that he acted under that he did not mean to harm, was not negligent and he acted merely under self defense. He may also rely on defense of necessity.
Sec 96 IPC says “Nothing is an offence which is done in exercise of the right of private defense”. Private defense may be regarded as a species of self help or self-redress. When a person trespasses into ones house and use derogatory methods then one can repeal the attack by using reasonable force against him to preserve oneself but later one may also go after him and retake from him the goods stolen.
The former is private defense and the later is self help. The person are allowed to repel force by force, not for the redress of injuries but for their prevention, not in order to undo a wrong done or to get compensation for it but to cut wrong short before it is done; & the right goes only to the extent necessary for this purpose.
Holmes v Bagge.
The claimant and the defendant were both members of a cricket club. During the match defendant asked the claimant a spectator to act as a substitute for one of the players. But during the match the defendant rudely asked the claimant to remove his coat which he refused. The claimants neither removed his coat nor leave the field. The defendant forcefully removed the claimant. The defendant when sued for assault pleaded possession of ground but the plea was rejected as the possession of land was in the committee of the club.
Scott v Shepherd. (1773) 2 W & B L 892.
A threw a lighted squib into a crowded market. It fell upon a stall of B. C a bystander to prevent injury to himself takes and throws it away. It fell in D’s
Stall who inturn threw it away which exploded on the face of E and blinded his one eye. In such case the intermediate involuntary agents who acted under right of private defense are not liable. The judges decided that even if action has been bought against them they would not have been liable for they acted “under a compulsive necessity for their own safety and self-preservation”
Cook v Beal. (1697) Lord Raym 176.
In this case A strikes B, B draws his sword and cuts the head of A. This will not come under private defense as B used unreasonable force.
Bird v Holbrook. (1821) 4 Bing 628.
Defendant set some spring guns on his garden because his flowers were stolen from his garden. The plaintiff a boy did not knew the existence of spring guns entered the garden in search of his fowl got injured. The defendant was held liable as he used unreasonable methods to protect his land.
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