Basics of Case Law

DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
LUCKNOW

SUBJECT- BASICS OF CASE LAW

FINAL DRAFT
ON
STATE OF UP VS NIYAMAT
(1987) 3 SCC 434

UNDER THE GUIDANCE OF: SUBMITTED BY:

DR. BHANU PRATAP DEVANSH RATHI
ASSISTANT PROFESSOR 1ST SEMESTER
DR.RMLNLU [LUCKNOW] SECTION-A
ROLL. NO. – 053

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 Basics of Case Law

ACKNOWLEDGEMENT

I am most profoundly grateful to my teacher Dr. Bhanu Pratap for providing me this wonderful
opportunity to work upon this case after doing which I feel to have enlightened myself in this
regard and for the precious time they spent guiding us for the completion of this project.

I also thank the members of the library staff for their cooperation in making available the books
and magazines and allowing me to access the internet even during their free time and whenever i
required to do so.

Last but not the least I would also like to thank my Parents and friends. It was only because of
their excellent help that I have been able to complete my project.

DEVANSH

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 Basics of Case Law

TABLE OF INDEX

Contents
INTRODUCTION……………………………………………………………………………………………………………………………………….4

BENCH STRENGTH……………………………………………………………………………………………………………………………………5

NAME OF THE CASE…………………………………………………………………………………………………………………………………5

DATE OF JUDGMENT……………………………………………………………………………………………………………………………….5

RELEVANT CITATIONS……………………………………………………………………………………………………………………………..5

TYPE OF JUDGMENT ……………………………………………………………………………………………………………………………….5

FACTS OF THE CASE………………………………………………………………………………………………………………………………...5

ISSUES INVOLVED…………………………………………………………………………………………………………………………………….6

LAW INVOLVED……………………………………………………………………………………………………………………………………….7

DECISION…………………………………………………………………………………………………………………………………………………8

RATIO OF THE CASE…………………………………………………………………………………………………………………………………8

COMMENT ON THE JUDGMENT…………………………………………………………………………………………………………….10

PRIVATE DEFENSE IN THE INDIAN LEGAL SYSTEM………………………………………………………………………………….12

CONCLUSION……………………………………………………………………………………………………………………………………......18

BIBLIOGRAPHY……………………………………………………………………………………………………………………………………….18

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 Basics of Case Law

INTRODUCTION

Private defense, generally is an excuse or defence available to a person against a person or

property. It is available mostly, only when a person has a point to believe that, there is a threat to
his life, property etc. The Indian Penal Code, 1860, Section 96-106 provides for the law relating
to the right of private defence of person and property. The law provides with the authority to a
man to use necessary force against an assailant or wrongdoer for the purpose of protecting not
only one’s own body, property but also another’s body and property when immediate aid or
helpis not readily available, from the state machinery and in so doing he is not answerable in law
for his deeds. Section 971 talks about different types of Right to Private Defence;

a) RIGHT TO PRIVATE DEFENCE OF BODY,

b) RIGHT OF PRIVATE DEFENCE OF PROPERTY.
The body is question can be one’s own body or another’s or the property may be movable or
immovable and may be of one’s own or of any other person. Among the rules of criminal law,
self-help comes on the top. Private defence is absolutely important for the protection of life,
property and liberty of a person.A person who acts under a mistaken belief in the need for
defence is protected, except that the courts hold that the mistake must be reasonable i.e. the kind
and amount of force is regulated by the law. The reasonable and necessary force used by a
person to protect his/her property and body is known as the Right to Private Defence.

The following case of State of Uttar Pradesh v. Niyamat&ors.2a landmark judgement where we
can find a new approach to Right to private defence. A deep and critical understanding of the
facts and circumstances of the case is required to understand and criticize the judgement of the
Hon’ble Apex Court.

The case before coming to the Hon’ble Supreme Court, was tried by the Hon’ble High Court of
Allahabad, and the Court in its judgement dated April 13, 1977, heard an appeal against the
conviction of the respondents (in this case) recorded by First Additional Sessions Judge, Etah
convicting all the respondents under Section 302 read with Section 149, Section 395 and 147 of

1
THE INDIAN PENAL CODE, 1860.
2
STATE OF UP V. NIYAMAT & ORS, (Sep 23, 2017, 10:35 PM), https://indiankanoon.org/doc/1363044/.

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 Basics of Case Law

The Indian Penal Code, 1860 sentenced to life, 10 years and 2 years rigorous imprisonment
respectively to each one of the respondent.

NAME OF THE CASE

State Of U.P. (Petitioner)

Vs.
Niyamat & Ors. (Respondent)

DATE OF JUDGMENT

14th April, 1987

RELEVANT CITATIONS

1987 AIR 1652 1987 SCR (2) 953

1987 SCC (3) 434 JT 1987 (3) 1
1987 SCALE (1)844

BENCH STRENGTH

Divisional bench, comprising of Justice V. Khalid and Justice G. L. Oza.

TYPE OF JUDGEMENT

Unanimous judgement delivered by Justice G. L. Oza.

FACTS OF THE CASE

A.S.I Kotwali Etah accompanied by two constables Gauri Shanker and Kanauji Lal, went to
village Nidhauli Khurd, and arrested Laturi. VirendraNath, deceased, had informed them about
Laturi. The A.S.I. and the two constables returned to the Kotwali Etah with Laturi in custody.
After few minutes these constables, Gauri and Kanauji, were given summons for service on,
Girish of the same village. So constables, returned to the Village Nidhauli Khurd the same
evening to serve the summons. It was alleged that at the time of arrest, the two constables were
wearing police uniforms and constable Gauri was carrying his personal DBBL gun and a belt of
cartridges. While they were on duty in the village, VirendraNath, the deceased, informed them

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about a Badmash i.e. Dharampuri, and it is alleged that the Station Officer Kotwali Etah had
earlier told these constables about Dharampuri that he was supposed to be arrested. After
arresting him the two constables started for Etah with him in custody and VirendraNath, the
deceased, was also accompanying them.3

Around 9 P.M. when the constables, Gauri and Kanauji accompanied by VirendraNath, the
informer and Dharampuri in custody were on the way to Kotwali, the respondents armed with
spears, pharsas and lathis reached on the crime scene, with intention to rescue Dharampuri from
the illegal custody of the constables. Seeing this Gauri Shanker fired, few shots in the air with his
private gun in order to scare away the respondents. But the respondents while marching towards
them, asked them to release Dharampuri but the constables refused to release him and Gauri
Shanker fired the third shot in order to deter the respondents. On this, as per the prosecution, the
respondents assaulted the constables causing injuries to them and rescued Dharampuri from the
illegal custody of the constables. An attempt was made to snatch the gun from the constable and
it is then intervention was done by VirendraNath. He also asked them not to snatch the gun and
also physically intervened to prevent them from snatching the gun and the belt of cartridges from
the constable. In this scuffle he fall down and the respondents succeeded in snatching the gun
and the belt of cartridges from the constables and in this he was assaulted and he received large
number injuries due to which he died on the spot. The respondents, it is alleged, thereafter
escaped and they also took away Dharampuri, the gun of Constable Gauri Shanker and the belt
of cartridges.

ISSUES INVOLVED4

a) Whether the respondents acted under right of private defence provided under Section 97 and
Section 99 of the Indian Penal Code, 1860?

b) Whether the exceeded their right of private defence under Section 99 of the Indian Penal Code
1860?

c) Whether the respondents were guilty under Section 302 of the Indian Penal Code, 1860?

3
STATE OF UP V. NIYAMAT & ORS, (Sep 27, 2017, 12:40 PM), http://www.the-
laws.com/Encyclopedia/Browse/Case?CaseId=300002352100
4
STATE OF UP V. NIYAMAT & ORS, (Sep 27, 2017, 12:40 PM), http://www.scconline.com/1987SCR(2)953

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 Basics of Case Law

LAW INVOLVED

Section 97, the Indian Penal Code, 1860-

“Right of private defence of the body and of property.— Every person has a right, subject to the
restrictions contained in section 99, to defend—

(First) — His own body, and the body of any other person, against any offence affecting the
human body;

(Secondly) —The property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, rob-bery, mischief or criminal
trespass.”

Section 995-

“Acts against which there is no right of private defence.—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 colour of his office,
though that act, may not be strictly justifiable by law.

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 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.

There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities. Extent to which the right may be exercised.—The right of
private defence in no case extends to the inflicting of more harm than it is necessary to inflict for
the purpose of defence.

Explanation 1.—A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that
the person doing the act is such public servant.

5
THE INDIAN PENAL CODE, 1860.

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Explanation 2.—A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows, or has reason to
believe, that the person doing the act is acting by such direc-tion, or unless such person states
the authority under which he acts, or if he has authority in writing, unless he produces such
authority, if demanded.”

Section 302, the Indian Penal Code, 1860-

“Punishment for murder.— whoever commits murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine.”

DECISION6

a) On observing the evidence on record, the court held that the respondents were not guilty under
Section 302 and upheld the decision of the High Court of Allahabad which acquitted the
respondents on the ground of right of private defence under Section 97 and Section 99 of the
IPC. Section 997is only attracted where there is no reasonable apprehension of death or grievous
hurt.

b) The Supreme Court also held that unlawful arrest is an offence against the body.

c) The court held that if the objective of an assembly was to rescue a person from unlawful
custody, it would not constitute unlawful assembly. The court also propounded that if the
assembly is not unlawful, the conviction could not be held if individual members of the assembly
cannot be fastened with particular action contributing to the offence caused by more than one
person.

RATIO OF THE DECISION8

Supreme Court while going into the technicalities and merits of the case held that the
respondents were justified in their action as they exercised their Right to Private Defence and the
decision of the High Court was reasonable and justified. The Hon’ble High Court, after

6
STATE OF UP V. NIYAMAT & ORS, (Oct 6, 2017, 02:34 AM), https://indiankanoon.org/doc/1363044/
7
THE INDIAN PENAL CODE, 1860.
8
STATE OF UP V. NIYAMAT & ORS, (Oct 20, 2017, 11:23 AM), http://manupatra/(1987)3SCC434

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 Basics of Case Law

considering the First Information Report, the evidence of the witnesses, came to the conclusion
that the respondents had collected and reached to the crime scene with the sole objective to
rescue Dharampuri from the illegal custody of constables and not with the intension to assault or
murder anyone. It was found by the Hon’ble High Court as they went further with the F.I.R that
the respondents were not the one who assaulted the constable or VirendraNath in the first place,
only when the Constable Gauri Shanker fired few shots and it gave an impression to respondents
that their life is in threat that they assaulted them and gun and cartridges were snatched. . The
learned Judges also observed that "it is obvious that at that time when it must have been dark
(except for the light of torches which were being flashed and which could not have produced any
steady light) the appellants (respondents in this Court) could not have seen the direction in
which the shots were fired thought that they were being fired at and reasonably apprehended
serious injuries to themselves."

In the recent case, it is clear that respondents did not use the force or assaulted anyone, leave the
murdering the deceased until the shots were fired by one of the constable i.e. Gauri Shanker.
Even if it is accepted that there were flashlights and that it was a moonlight night, and a safe
inference could be taken out is, that the light might not be sufficient enough that respondents can
see form the distance that the constable was not shooting in their direction. In this situation, the
conclusion on which the Hon’ble High Court reached was that, it was sufficient to cause a
reasonable apprehension in the minds of the respondents that the constable was shooting in their
direction and they had a chance of getting grievously hurt or it might lead to death as well
therefore, they are entitled to the Right to Private Defence.

Also, it was contended by the learned prosecution in this case State that, even if the arrest of
Dharampuri by the constables was illegal the respondents could not plea the right to Private
Defence under Section 979 to rescue Dharampuri especially in view of Section 99 of the Indian
Penal Code. The Hon’ble High Court, on this contention came to conclusion that, if the arrest
was illegal, the assembly by the respondents at the place of crime could not be an unlawful
assembly as the objective behind the assembly was to rescue the person from the unlawful arrest.
It was also found by the Hon’ble Court that there was no sign or intention of assault or any use of
force from the side of the respondents, till the time constable fired few shots, which due to low

9
The Indian Penal Code, 1860.

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 Basics of Case Law

light could have given them enough to think that their lives were in danger and as a result they
assaulted the constable. The Hon’ble court held that they were acting in the Right to Private
Defence.

The first line of the Section 97 of IPC, clearly states that this section is only or it can only be
applied where there is no reasonable apprehension of death or grievous hurt and the emphasis
was laid down by the Hon’ble Court on the conclusion that the respondents did not use any force
or hurt the constables or anyone till the time constable fired 2 or 3 shots and it gave the
Impression to the respondents that there was a threat to their life and body from the constables.

Once the circumstances justified of such a reasonable apprehension the contention of the State
that in such a situation even if the arrest was illegal the step taken by the respondents was illegal
or unlawful, they could have taken recourse to use lawful methods for rescuing Dharampuri
rather than resorting to violence. This argument would have been a good one if the incident had
not took place after one of the constable fired three rounds from his private gun.

The High Court while considering other aspects of the case held that if the respondents could
not be held to be part or members of an unlawful assembly as their object at best could only be to
rescue Dharampuri from unlawful custody and not to use force or hurt anybody , then even if the
right of private defence is not accepted, it is not possible on the basis of the evidence provided
by the prosecution to find out what respondent caused what injury and it will not be possible to
find what injury was done by which person and it becomes impossible held them guilty for their
individual acts. The same will be the situation even if it is held that they exceeded the right of
private defence. Therefore, the reasoning of the High Court was justified by the Supreme Court
and they upheld the decision of the High Court.

COMMENT ON THE JUDGMENT

After reading the case, analyzing the facts and judgement given by the Hon’ble Supreme Court,
in my view judgment given by the Hon’ble court is not only justified but also appreciable, but
some of the points needed to be pointed out which in my view were left or mistakenly taken up
by the Hon’ble court. The Hon’ble court applies the Section 97 of IPC, 1860 that, illegal arrest
by the constable was an offence against the body of a person and its application by the Hon’ble

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judge was justified. When the court went into the merits of the case, it came to know that whole
action took place only after the shots were fired by the constable. And the contention given by
the state that the shots were fired in the air only to disperse the unlawful assembly by the
respondents and the barrel of the gun was in the air. The Hon’ble court rejected this contention
by saying that, even if the barrel of the gun was in air, and even if there was flashlights and it
was a moonlight night, it can safely be assumed that these things could not have generated
enough light and due to this it was easy or sufficient enough to cause reasonable apprehension in
the minds of the respondents, that they might get grievously hurt or it might lead to death also,
which is a reasonable ground to use the Right to Private Defence. The reasoning given by the
court is very logical and appreciable. The court also held that the assembly by the respondents
was not an unlawful assembly under Section 141 of IPC, 1860.

The main issue of deliberation which we should consider in this case is that the when the assault
was made on the constables, the police constables were accompanied by their informer
VirendraNath, the deceased. He was unarmed and was not in any manner a threat to the
assembly. Now, if we consider the post mortem report presented by the concerned authorities
and compare the wounds on the body of VirendraNath to that of Constables, we may find stark
differences. Constable Gauri Shanker was medically examined by Dr. R.R. Sharma at the district
Hospital, Etah on the same night, the doctor found 12 injuries on his person consisting of 5
lacerated wounds on the head, 5 contusions and 2 abrasions on different parts of his body.
Constable Kanauji Lal was medically examined the next morning and he was found to have 2
bruises and an abrasion.Dr. R.P. Yadav performed the postmortem examination on the body of
deceased i.e. VirendraNath. He was found to have 2 incised wounds, 7 stab wounds, 5 lacerated
wounds and 16 contusions on various parts of his body.10

From the facts of the case, it is clear that when the constables were assaulted by the assembly in
order to snatch the gun and cartridges, VirendraNath first tried to stop them verbally and then
intervened physically. Now, during this scuffle, as he was assaulted he fell down and dies on the
spot due to large number of injuries. The one fact which we should keep in mind is that, he only
tried to stop the and he was not armed or threat to assembly and the fact he fell down, then also
he was stabbed for 7 times and he died on the spot. The argument may be given that it was in the

10
KRISHNA DEO GAUR, TEXTBOOK ON THE INDIAN PENAL CODE

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 Basics of Case Law

same transaction of the right to private defence, then also the respondents clearly exceeded their
right of private defence. The people who were having the gun were not assaulted in the manner
in which VirendraNath was assaulted which led to his death.

On the point of unlawful assembly, the court held that the respondents only had the objective of
rescuing Dharampuri as they did not assaulted anyone until few shots were fired by the
constable, which gave them apprehension that it might hurt them, may be right but the fact that
the assembly was armed with spears, pharsas and lathis clearly shows that did not come only to
protect the arrested person. Had there been same serious injuries to the constables also, then this
argument of mine would have failed but the difference in the injuries clearly shows some mala
fide intention on part of the respondents in relation to VirendraNath.

The court also held that since the assembly was lawful as they didn’t have any intention to inflict
injuries to the constables, the kind of weapon they used clearly show the other way. The
assembly might be held lawful, but the argument given by the court that when you cannot make
individual liable with particular action, there cannot be any conviction is not appreciated by me.
A person mere intervening in order to protect the public servant was stabbed to death and the
court gives the benefit of right to private defence since it is unable to fix individual liability is not
appreciable.

PRIVATE DEFENCE IN THE INDIAN LEGAL SYSTEM

Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is absolutely
necessary. The vigilance of the Magistrates can never make up for vigilance of each individual
on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the
sum total to individual resistance[vi]. Take away this right and you become, in so doing, the
accomplice of all bad men.” This right is based on two principles,

 It is available against the aggressor only, and

 The right is available only when the defender entertains reasonable apprehension.11

11
BARRY WRIGHT, CODIFICATION, MACAULAY AND THE INDIAN PENAL CODE

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 Basics of Case Law

There are three tests for ascertaining reasonable apprehension; they are the objective, subjective
and expanded objective tests. While objective test emphasizes as to how in a similar
circumstance an ordinary, reasonable, standard and average person will respond, the subjective
test examines the mental state based on individual attitude. However, expanded objective test,
being a combination of aforesaid two tests, bases its inquiry to determine whether or not the
individual acted as a reasonable person. Right of private defence serves a social purpose and the
right should be liberally construed. Such a right is not only a restraining influence on corrupt
characters but also encourages manly spirit in a law abiding citizen. It should not be narrowly
construed as it necessitates the occasions for the exercise of this right as an effective means of
protection against wrong doers.

The Right to private defence of a citizen, where one can practically take law in his own hands to
defend his own person and property or that of others, is clearly defined in Section 96 to Section
106 of the Indian Penal Code.

Section 96 talks about things done in private defence – Nothing is an offence, which is done in
the exercise of the right of private defence.

Right of private defence cannot be said to be an offence in return. The right of self-defence under
Section 96 is not ,absolute but is clearly qualified by Section 99 which says that the right in no
case extends to the inflicting of more harm than it is necessary for the purpose of defence. It is
well settled that in a free fight, no right of private defence is available to either party and each
individual is responsible for his own acts. The right of private defence will completely absolve a
person from all guilt even when he causes the death of another person in the following situations,
i.e

 If the deceased was the actual assailant, and

 If the offence committed by the deceased, which occasioned the cause of the exercise of
the right of private defence of body and property falls within anyone of the six or four
categories enumerated in Sections 100 and 103 of the penal code.12

12
KRISHNA DEO GAUR, TEXTBOOK ON THE INDIAN PENAL CODE

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 Basics of Case Law

Section 97 talks about Right of private defence of the body and of Property: – Every person has a
right, subject to the restrictions contained in Section 99, to defend-

First-His own body, and the body of any other person, against any offence affecting the human
body;

Secondly-The property, whether movable or immovable, of himself or of any other person,

against any act which is an offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.

This Section limits exercise of the right of private defence to the extent of absolute necessity. It
must not be more than what is necessary for defending aggression. There must be reasonable
apprehension of danger that comes from the aggressor. This Section divides the right of private
defence into two parts, i.e. the first part deals with the right of private defence of person, and the
second part with the right of private defence of property[vii].

Section 99 lays down the acts against which there is no right of private defence: – 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 color of his office, though that act, may not be strictly justifiable by law.13

Section 99 lays down the conditions and limits within which the right of private defence can be
exercised. The first two clauses provide that the right of private defence cannot be invoked
against a public servant or a person acting in good faith in the exercise of his legal duty provided
that the act is not illegal[viii]. Similarly, clause three restricts the right of private defence if there
is time to seek help of public authorities. And the right must be exercised in proportion to harm
to be inflicted. In other words, there is no right of private defence:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or direction;
 When there is sufficient time for recourse to public authorities; and

13
BARRY WRIGHT, CODIFICATION, MACAULAY AND THE INDIAN PENAL CODE

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 Basics of Case Law

 The quantum of harm that may be caused shall in no case be in excess of harm that may
be necessary for the purpose of defence.
 Section100 specifies when the right of private defence of the body extends to causing
death: –

The right of private defence of the body extends, under the restrictions mentioned in the last
preceding section, to the voluntary causing of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely: —

First-Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;

Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly- An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

Sixthly- An assault with the intention of wrongfully confining a person, under circumstances that
may reasonably cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.

Seventhly – an act of throwing acid or attempting to throw acid.

To invoke the provisions of Section 100 of I.P.C., four conditions must exist:-

 The person exercising the right of private defense must be free from fault in bringing
about the encounter,
 There must be an impending peril to life or of great bodily harm,
 There must be no safe or reasonable mode of escape by retreat,

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 Basics of Case Law

 There must have been a necessity for taking life.

Section101 prescribes when such right extends to causing any harm other than death:-

If the offence be not of any of the descriptions enumerated in the last preceding section, the right
of private defence of the body does not extend to the voluntary causing of death to the assailant,
but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the
assailant of any harm other than death[ix].

Section102 is very important as it deals with the commencement and continuance of the right of
private defence of the body:

The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to commit the offence though the offence
may not have been committed; and it continues as long as such apprehension of danger to the
body continues. The apprehension of danger must be reasonable, not fanciful. For example, one
cannot shoot one’s enemy from a long distance, even if he is armed with a dangerous weapon
and means to kill. This is because he has not attacked you and therefore there is no reasonable
apprehension of attack. In other words, there is no attack and hence no right of private defence
arises. Moreover the danger must be present and imminent[x].

Section103 specifies when the right of private defence of property extends to causing death: –

The right of private defence of property extends, under the restrictions mentioned in Section 99,
to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which, occasions the exercise of the right, be
an offence of any of the descriptions hereinafter enumerated, namely: Robbery, House-breaking
by night, Mischief by fire committed on any building, tent or vessel, which building, tent of
vessel is used as a human dwelling, or as a place for the custody of property, Theft, mischief, or
house-trespass, under such circumstances as may reasonably cause apprehension that death or
grievous hurt will be the consequence, if such right of private defence is not exercised.14

14
BARRY WRIGHT, CODIFICATION, MACAULAY AND THE INDIAN PENAL CODE

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Section 103 provides the right of private defence to the property whereas Section 100 is meant
for exercising the right of private defence to the body of a person. It justifies homicide in case of
robbery, house breaking by night, arson and the theft, mischief or house trespass which cause
apprehension or grievous harm. If a person does not have possession over the property, he cannot
claim any right of private defence regarding such property[xi]. Right to dispossess or throw out a
trespasser is not available to the true owner if the trespasser has been successful in
accomplishing his possession to his knowledge. This right can be only exercised against certain
criminal acts that are mentioned under this section.

Section104 tells us when such right extends to causing any harm other than death:-

If the offence, the committing of which, or the attempting to commit which, occasions the
exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the
descriptions enumerated in the last preceding section, that right does not extend to the voluntary
causing of death, but does extend, subject to the restrictions mentioned in section 99, to the
voluntary causing to the wrongdoer of any harm other than death. This Section cannot be said to
be giving a concession to the accused to exceed their right of private defence in any way[xii]. If
anyone exceeds the right of private defence and causes death of the trespasser, he would be
guilty under Section 304, Part II. This Section is corollary to Section 103 as Section 101 is a
corollary to Section 100.

Section105 prescribes the commencement and continuance of the right of private defence of
property: –

The Right of private defence of property commences when a reasonable apprehension of danger
to the property commences. The right of private defence of property against theft continues till
the offender has affected his retreat with the property or either the assistance of the public
authorities is obtained, or the property has been recovered[xiii]. The right of private defence of
property against robbery continues as long as the offender causes or attempts to cause to any
person death or hurt or wrongful restraint of as long as the fear of instant death or of instant hurt
or of instant personal restraint continues

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 The right of private defence of property against criminal trespass or mischief continues as
long as the offender continues in the commission of criminal trespass or mischief.
 The right of private defence of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking continues.

Section106 talks about right of private defence against deadly assault when there is risk of harm
to innocent person: –

If in the exercise of the right of private defence against an assault, which reasonably causes the
apprehension of death, the defender be so situated that he cannot effectually exercise that right
without risk of harm to an innocent person his right or private defence extends to the running of
that risk.

CONCLUSION

The court in deciding State of UP v. Niyamat laid down few principles which are have expanded
the scope of right of private defence and specifically Section 99 of IPC. There are some issues
which are raised in this judgment and they require attention of the jurists and academic scholars
in relation with fastening the liability of an individual and conviction in a lawful assembly. Even
if the object of an assembly is to protect someone, can we exceed the right to private defence.
State of U.P v. Niyamat raised many issues which the prosecution was unable to prove beyond
reasonable doubt. The principle laid down is appreciable but the case clearly shows the failure of
the prosecution.

BIBLIOGRAPHY

 Indian penal code, 1860

 Barry Wright, Codification, Macaulay And The Indian Penal Code
 Krishna Deo Gaur, Textbook On The Indian Penal Code

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 Internet sources –
1. www.indiankanoon.com
2. www.scconline.com
3. www.manupatra.com

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