OF THE RIGHT OF PRIVATE DEFENCE
34. THINGS DONE IN PRIVATE DEFENCE.
Nothing is an offence which is done in the exercise of the right of private defiance.
35. RIGHT OF PRIVATE DEFENCE OF BODY AND OF PROPERTY
Every person has a right, subject to the restrictions contained in section 37, to defend—
a. his own body, and the body of any other person, against any offence affecting the human body;
b. 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 or criminal trespass.
36. RIGHT OF PRIVATE DEFENCE AGAINST ACT OF A PERSON OF UNSOUND MIND, ETC
When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
ILLUSTRATIONS
a. Z, a person of unsound mind, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
b. A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception
37. ACTS AGAINST WHICH THERE IS NO RIGHT OF PRIVATE DEFENCE
1. There is no right of private defence, ––
a. 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;
b. 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 fait under colour of his office, though that direction may not be strictly justifiable by law;
c. in cases in which there is time to have recourse to the protection of the public authorities.
2. 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.
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 direction, 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.
38. WHEN THE RIGHT OF PRIVATE DEFENCE OF BODY EXTENDS TO CAUSING DEATH
The right of private defence of the body extends, under the restrictions specified in section 37, 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:—
a. such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault
b. such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
c. an assault with the intention of committing rape;
d. an assault with the intention of gratifying unnatural lust;
e. an assault with the intention of kidnapping or abducting;
f. an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release;
g. an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
39. WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH
If the offence be not of any of the descriptions specified in section 38, 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 specified in section 37, to the voluntary causing to the assailant of any harm other than death.
40. COMMENCEMENT AND CONTINUANCE OF 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.
41. WHEN RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH
The right of private defence of property extends, under the restrictions specified in section 37, 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:—
a. robbery;
b. house-breaking after sun set and before sun rise;
c. mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
d. 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.
42. 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 specified in section 41, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions specified in section 37, to the voluntary causing to the wrong-doer of any harm other than death.
43. COMMENCEMENT AND CONTINUANCE OF RIGHT OF PRIVATE DEFENCE OF PROPERTY
The right of private defence of property, ––
a. commences when a reasonable apprehension of danger to the property commences;
b. 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;
c. against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues;
d. against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief;
e. against house-breaking after sunset and before sun rise continues as long as the house-trespass which has been begun by such house-breaking continues.
44. 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 of private defence extends to the running of that risk.
ILLUSTRATION
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.