The First Para
Whenever an act is done or attempted to be done by a public servant who acts in good faith under colour of his office, there exists no right of private defence against such act, if there is no reasonable apprehension of death or of grievous hurt from that act, though that act may not be strictly justifiable by law. In such cases good faith, which has the same meaning as stated under section 52 of the Code, on the part of the public servant must be proved.
Under colour of his office
The expression ‘under colour of his office’ means that the nature of the act on the part of the public servant is related to the nature of his work or duties. In other words, if the act done or attempted to be done by the public servant does not fall within the ambit of his nature of duties, he does not act under colour of his office and consequently, he will not be in a protected situation then against a right of private defence.
For instance, under clause (9) of section 21 of the Code an officer who keeps a property on behalf of the government is a public servant. If such an officer arrests someone, he does an act which is not at all within the nature of his duties and, therefore, this act on his part is not done under colour of his office. Consequently, the person who is being arrested by him has a right of private defence for this blatantly illegal arrest.
May not be strictly justifiable by law
The words ‘may not be strictly justifiable by law’ have been used with the object of emphasising that an illegality on the part of a public servant will not be protected but an irregularity will. Acting without jurisdiction will not entitle the public servant to claim the benefit of this section but erroneous exercise of it will. A principle has to be followed but a procedural formality may be relaxed.
The first para should be read with the first explanation appended to this section. The explanation makes it clear that the right of private defence against an act done or attempted to be done by public servant will be available to a defender unless he knows or has reason to believe that the person doing the act is a public servant.
That is one of the reasons as to why a public servant before doing something generally discloses his identity to the person against whom he is about to do something. The identity in the form of a badge on his shoulders or chest also helps in the process of identification. If the defender does not know or have reason to believe that the other person is a public servant, there is no curtailment in his right of defence.
The Second Para
The second para gives a similar privilege to one who acts under the direction of a public servant though that direction may not be strictly justifiable by law. In this case also good faith on the part of the public servant must be proved in addition to the fact that there was no reasonable apprehension of death or of grievous hurt in the mind of the defender from the conduct of the person acting under the direction of the public servant. Such a person is also protected like a public servant even if the direction by the public servant may not be strictly justifiable by law. Here also an irregularity is protected but an illegality is not.
This para must be read with the second explanation appended to the section which is similar to the first explanation. The second explanation states that one’s right of private defence remains intact unless he knows or has reason to believe that the person doing the act is acting by the direction of a public servant, 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.
The Third Para
The third para lays down the important principle that the right of private defence does not exist in such cases where there is time to have recourse to the protection of the public authorities. The purpose behind this provision is to check such gross misuse of this right wherein everyone would try to take the law in his own hands even though there is enough time to seek the help of public authorities.
The law cannot and should not give such freedom to everyone as to allow all to take the law in their own hands. That would be catastrophic; and, therefore, this provision has been incorporated with a view to check such kind of a situation. The law insists that a reasonable opportunity must be given first to the public authorities to deal with grave situations. Availability of time at one’s disposal is the essence and recourse must be had to the protection of the public authorities if such is the case.
For instance, if some trespassers occupy a vacant field and there is no immediate threat of any harm to anyone, the defender must seek the help of public authorities instead of going to fight with the trespassers straightaway. The important question in such cases is to think very carefully as to whether there is an immediate threat to his property which should be met with force immediately, or is there sufficient time to seek the help of the public authorities. There may be a situation, however, where the public authorities have reached to help the defender but they are far outnumbered by the attackers.
For example, a big gang of dacoits may come to attack the property of the defender and there may only be a very few policemen, not adequately armed, to help him. Should the defender do nothing in these circumstances because help from the public authorities has arrived? The answer naturally lies in the interpretation of the word ‘protection’ used in this para, and the Courts are bound to interpret that since the protection of the public authorities is totally inadequate in this case, the defender’s right of private defence continues, and in any case he may always help and assist the public authorities in the task of protection.
The Fourth Para
The fourth para is perhaps the most important part of section 99. It says that the right of private defence does not extend ever to inflicting more harm than necessary for the purpose of defence. The right of private defence is a right of defence and not of offence, and consequently, the force applied by the defender must always be reasonable which must mean that it must not be excessive and must in no case exceed what is necessary for the purpose of defence of the body or the property, as the case may be.
The amount of force necessary depends on the facts and circumstances of each case and there cannot be a general law to this effect. It needs to be noted, however, that the defender is not expected to weigh in golden scales the amount of force necessary and an overall view needs to be taken by the Court in the matter.
There are two explanations appended to this section. According to the first, a person’s right of private defence remains even against acts done or attempted to be done by a public servant unless he knows or has reason to believe that the act or the attempted act is done by a public servant. That is why it is generally noticed that whenever a public servant does or attempts to do anything against a person he discloses his identity and the office he holds to that person beforehand.
Similarly, according to the second explanation, a person’s right of private defence remains even against acts done or attempted to be done by the direction of a public servant unless he knows or has reason to believe that the person acting against him is doing so under the direction of a public servant, or unless the person acting states the authority under which he is acting, or unless he produces the written authority under which he is acting, if demanded.
Cases under the first para
Where some public servants had gone to collect milk tax and on being denied the same they tried to seize the appellant’s buffalo which was resisted by the appellant resulting in the fracture of the nose of one of them the Court held that the act of the inspectors of the corporation in demanding immediate payment of the milk tax and failing that immediate attempt to seize the buffalo was a misconception about the mode of exercise of their powers.
The conviction was maintained but the fine was set aside and the sentence was reduced to one already undergone. A person who was in illegal police confinement was sought to be rescued. The police fired at the rescuers. It was held that the firing was sufficient to cause the apprehension of death or grievous hurt in the mind of the rescuers. A sub-inspector of police along with a constable entered a house wrongly believing that stolen property was stored there by P who was not present at that time.
The Sub-inspector demanded the property from the wife of P who asked him to come later as she did not know anything about the same and that P was not at home. He declined to wait and threatened her with a cane and laid hands on her on which she shouted hearing which the accused who was the cousin of P arrived. Following an altercation the sub-inspector started beating him.
He snatched a heavy stick from the constable and gave a few blows on the sub-inspector causing his death. The Court held that private defence was available to the accused. Where a police party arrived at a village at night to recover a woman and hand her over to her father, and the whole act was illegal and without jurisdiction, the villagers had right of private defence against the policemen.
Where search operations were carried on by the police without following the requirements of section 165, Code of Criminal Procedure, 1898 (which corresponds to the same section of the new Code of 1973) which were resisted by the defenders who were sought to be checked by the police by a loaded revolver being pointed at them, there was a reasonable apprehension of death or grievous hurt in their mind and consequently they had the right of private defence against the policemen.
Cases under the second para
The Commissioner delegated certain authority to the raiding party under the Delhi Municipal Corporation Act, 1957 to round up stray cattle. The party rounded up certain such cattle and were taking the same to the pound when they were confronted by the accused party who were the owners of the cattle. The raiding party showed their identity cards to the accused and thereby disclosed their identity to them. Even then the accused party attacked them and caused injuries.
The plea of private defence was rejected by the Supreme Court. It was observed that protection under the second para of section 99 is available even for acts strictly not justifiable by law, whereas in the instant case what the raiding party did was perfectly in accordance with law and, therefore, there was no question of holding that the raiding party did not enjoy this protection.
Cases under the third para
Where the accused went to take possession of a government quarter originally allotted to him, but occupied by the sub-tenant of his tenant, and used force against him resulting in the death of an intervener, it was held that he should have taken recourse to the protection of the public authorities instead of using force and stabbing the deceased. The plea of private defence was thus rejected.
In Munshi Ram v. Delhi Administration, the Supreme Court has held that the law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be a restraining influence on bad characters, but it will encourage the right spirit in a free citizen.
Reiterating the above principle in Puran Singh v. State of Punjab, the Supreme Court observed that where there is an element of invasion or aggression on the property by a person who has no right of possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force, if necessary.
Where there was a land dispute between the accused rightful owner and the deceased trespasser, and the latter was in possession of the land and was getting it ploughed the accused had no right to inflict blows on the deceased who was sitting nearby without arms and the proper course for him was not to take the law in his own hands but to take recourse to the public authorities.
Where the accused was in possession of a property given to him by the Court under section 145, Code of Criminal Procedure, 1973, he had a right of private defence to throw away the trespassers and demolish illegal constructions made thereat by them.
When there is reasonable apprehension of imminent attack on one’s property by the armed trespassers, he is not expected to leave his property attended and go to take the help of public authorities; he has a right of private defence right then and there, if attacked.
Case under the fourth para
Where death of an unarmed lady intervener was caused who had not attempted to cause any harm to anyone and was only pleading that no harm should be caused to her sons, it was held that the right of private defence had been far exceeded. There was a disptute between the accused appellant and the deceased over a piece of land which was in the possession of the latter and who had grown crop over it.
The appellant went on to the land with a view to reap the crop. In the altercation that followed the deceased gave a lathi blow on the father of the accused appellant on which the appellant gave a blow by a ballam on the chest of the deceased resulting in his death. The Supreme Court held that private defence was far exceeded because whereas only one lathi blow was inflicted by deceased on the appellant’s father, the appellant killed him by a ‘ballam’ blow.
The appellant and his brother had strained relations. On the day of the occurrence there was an altercation between the two and the appellant took out a dagger from his waist and rushed towards his brother who bent down to pick up a big piece of stone with a view to attack the appellant. But before that could be done the dagger blow was inflicted. It was proved that the brother was the aggressor and, therefore, the Supreme Court held that the appellant had not inflicted more force than necessary for the purpose of the defence.
The evidence could not clearly establish as to whether a fight was started by the armed complainants who had gone to the house of the accused in an aggressive mood or the accused himself. Injuries were suffered by both the parties. However, it was proved that the accused kept on attacking the deceased member of the complainant party even though he had fallen down on the ground seriously injured. The force used by the accused was held to be excessive.
Where the accused was attacked by some persons armed with sharp weapons and injuries were caused on his body, the accused could not be said to have exceeded his right of private defence even though he had caused the death of one of the attackers because the law does not expect one to weigh in golden scales the exact amount of force needed to repel the attack. Reasonability of the force applied and not its exactness is to be seen while exercising this right.
Where a thief tried to enter a house through an entrance made in the side wall and he was seized as soon as part of his body had entered and his face was put down on the ground by the accused to prevent him from fully entering and as a result of which he was suffocated to death, it was held that no more force than necessary was applied and consequently he could not be held to have exceeded his right of private defence.
Where simple injuries were caused on the body of the accused by certain persons but the accused had caused such serious injuries on them that an attacker died as a result of the injuries suffered by them, and the accused even did not allow the victim to be taken to the hospital, it is clear from the facts that much more force than necessary was used by him and consequently, he was not entitled to the right of private defence.
Where the accused suffered injuries at the hands of the son of the deceased mother but instead gave lathi blows to her during the fight even though she was unarmed, he could not be said to have acted under his right of private defence.
In Mohammad Yusuf v. State of U.P., there was an altercation resulting in raising of rifles by both the accused and the deceased. The accused fired shots even after the deceased had lowered his rifle. The Supreme Court held that the plea of private defence was not tenable.