Legal Provisions of Section 97 of Indian Penal Code, 1860.
Right of private defence of the body and of property:
The concept of self-defence originated in the olden days in the form of a right to defend one’s own person or property and that is why this name ‘self on defence. Gradually the right was extended to the defence of person and property of one’s relatives, friends, servants, acquaintances and the like.
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It was soon realised, however, that there was no justification for this right to remain limited to the abovementioned categories only because it was not proper to remain silent when the person or property of other persons, known or unknown, was threatened with attack. Therefore, the right ultimately got extended to cover such cases also.
Even though the use of the expression ‘self-defence’ continues in its extended form in many countries, many others like India have extended the terminology also and consequently the word ‘self has been replaced by ‘private’ which perhaps is more appropriate in the sense that this right is not any more restricted to defending one’s ‘own’ person or property but includes that of ‘others’ as well.
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This section specifically provides that every person has a right to defend the person and property of his own and that of any other person. The right, however, is subject to certain restrictions or limitations as stated under section 99 of the Code. The first part of section 97 states that every person has a right to defend his own body and the body of any other person against any offence affecting the human body.
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Since offences affecting the human body have been covered under sections 299 to 377 of the Code, it is apparent that the right of private defence of body is available in a very large number of cases or situations. The second part of this section states that every person has a right to defend the property, both movable and immovable, of any person including his own, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt of any of these.
The right of private defence of property is, therefore, comparatively restricted in the sense that it is available only in cases of the four offences mentioned above and their attempts. Consequently, this right is not available, for example, for an offence under section 24 of the Cattle Trespass Act, 1871. The offences of theft, robbery, mischief and criminal trespass have been defined under sections 378, 390, 425 and 441 of the Code respectively.
It has been held by the Gauhati High Court in Akonti Bora v. State, that while exercising the right of private defence of property the act of dispossession or throwing out a trespasser includes the right to throw away the material objects also with which the tresspass has been committed.
But where an order under section 145 of the Code of Criminal Procedure, 1973 has been passed declaring one party to be in possession of a disputed property and in whom the possession would continue until he is evicted from it in due course of law, that party has no right to destroy the property itself, and, therefore, the opposite party would have a right of private defence to protect the property from being so destroyed.
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Where the accused assaulted the victim on seeing his minor daughter being sexually molested by him, the right of private defence is extendable to such case, and the fact whether sexual intercourse was with or without the consent of the daughter is not material. The fact whether the cause of subsequent death of victim was internal injury due to a fall or result of a blow by the accused is also not material. His conviction under section 325 was, therefore, set aside.
As has already been discussed under section 96, it is not necessary for the accused to plead the right of private defence to be entitled to its benefit. If the Court is convinced that the facts and circumstances of the case suggest that he had acted under this right, the benefit shall be given to him irrespective of the fact as to whether he has pleaded this defence or any other defence or no defence at all. Similarly, the law does not require the accused to weigh in golden scales the precise force which is needed to repel an attack.