Introduction 

• The right of private defense is essentially a preventive right and not punitive. 
• This right ensures the safety of one’s own private body or property against some specific offences. 
• This is the right available to any person to protect anyone’s body or property against such offences. 
• It must be noticed that there must be no plan of action, and the power utilized must not be more than the required power that is needed to ensure the safety of the body or property of the individual. 
• The right of Private defense is briefly discussed under Chapter III (General Exceptions) of the Bharatiya Nyaya Sanhita 2023 (BNS). 

Basis of the Right of Private Defense 

• This right can be exercised against unlawful hostility. 
• It rests with the individual to secure himself and his property against such unlawful hostility. 
• When the prompt guide from the state is not accessible and when the individual is looked at with risk, that individual qualifies to use private defense. 
• The right of private defense should never be exercised with malice intention. 
• The right must be used in a sensible manner. 
• The force used for private defense and the threat should be in proportionate manner. 
• This right cannot be exercised against the community workers acting in the exercise of their legitimate forces. 

Legislative Framework of the Right of Private Defense in India 

• Provisions of BNS which states the Right of Private Defense of property are stated below: 

Private Defense 

• Section 34: Things done in private defense. 
  • Nothing is an offence which is done in exercise of the right of private defense. 

Right of Private Defense of Body & Property 

• Section 35 states that every person has a right, subject to the restrictions contained in section 37, to defend—  
  • His own body, and the body of any other person, against any offence affecting the human body. 
  • The property, whether movable or immovable, of himself or of any 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.  

Acts Against Which No Private Defense is Available  

• Section 37 states that   
  • 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.  
  • 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 color of his office, though that direction may not be strictly justifiable by law.  
  • In cases in which there is time to have recourse to the protection of the public authorities.   
  • The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense.

Commencement and Continuance of Right of Private Defense of Property 

• Section 43 states the provisions that when the right of private defense starts as: 
  • When a reasonable apprehension of danger to property. 
  • against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. 
  • against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or if the fear of instant death or of instant hurt or of instant personal restraint continues. 
  • against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. 
  • against housebreaking after sunset and before sunrise continues as long as the house-trespass which has been begun by such housebreaking continues. 

Landmark Judgements 

• Darshan Singh v. State of Punjab (1953): The accused discovered thieves stealing his cattle at night. He chased and attacked them, resulting in one death. The court held this was justified under private defense of property since: 
  • The threat to property was immediate. 
  • The defense was proportionate to the threat. 
  • There was reasonable apprehension of theft.
• Onkarnath Singh v. State of Uttar Pradesh (1974): It was held that there was nothing to legitimize the dangerous assault. The power utilized was out of extent to the alleged threat, which never again existed from the complainant party.   

Conclusion 

Self-defense is a rule of criminal law and in this manner, the state gives people the right to ensure and protect themselves and their properties. To exercise the Right of Private Defense, there must be an immediate risk to their property and no reasonable means to escape available the time must be insufficient to seek assistance from the authorities and it is such serious that causing the death of the assailant must have been unavoidable.