Acts Against Which There Is No Right Of Private Defence

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Acts Against Which There Is No Right Of Private Defence

Introduction:

Section 99 of the penal code enumerates the limitations imposed on the exercise of right of private defence. In other words, it deals with acts against which there is no right of private defence. The instances so enumerated against which there is no right of private defences are.

Acts done by public servants:

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under the colour of his office, though that act may not be strictly justifiable by law.

The first para of S. 99 PPC rests partly on the probability that the acts of public servant will be lawful in which case resistance must necessarily be unlawful; party on the theory of that resistance is unnecessary since the law will set right what has been wrongly done in its name; and lastly on the ground that it is good for society that a public servant should be protected in the execution of his duty even where he is in error; but it is essential that the public servant should have acted in good faith under colour of his office although the act is not strictly justifiable by law.

 

Act done on the direction of public servant:

There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under the colour of his office, though that direction may not be strictly justifiable by law.

Where a Magistrate directed by general order to his orderly to bring before him all persons found selling articles unfit for consumption and the attempt of the orderly to bring the accused was resisted by them. It was held that the Magistrates order was illegal but that the resistance would not justified if the orderly acted in good faith under the colourf his office, there being no apprehension of death or grievous hurt.

Time be have recourse to public authorities:

The third paragraph of S. 99 enacts that a person have no right of private defence if he has time to have recourse to the protection of the public authorities. Time element in S. 99 does not depend on the gravity of the offence threatened. If the accused reasonably fears that the offence threatened would be completed by the time the public authorities act the accused is under no legal obligation to proceed to the police or other authorities, instead of exercising his right of private defence at the spot himself.

Extent of right of private defence:

The right of private defence in no case extends to the inflicting of more harm than necessary to inflict of the purpose of defence.

Right of private defence not to be weighed in golden scale:

A person exercising his right of private defence is not required to inflict an injury on the assailant of the same nature as was caused to him by assailant. When an aggressor in a situation created by him has the upper hand the victim of the aggression is not required to modulate his defence step by step or retreat from the scene or to run away and in case of his decision, in the exigencies of the situation, to retaliate by force, he has not to measure the strength of his blow, where one is under the apprehension of death or grievous hurt, if he, in that situation muster all his muscle to put his maximum strength behind his blow to vanquish his adversary to ward off the threat to his life, he cannot be said to have exceeded his right of defence which had accrued to him because of danger. The only restriction is that, he should not use more force than is necessary and should not inflict an injury which is out of all proportion to the threatened injury to himself.

 

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