22/07/2021
The law of private defence is summarised by a full bench of Orissa High court in the case of State of Orissa v. Rabindra Nath:
It is the responsibility of the State to defend a person’s body and property. In the same way, it is the duty of every person to take shelter under the machinery of the state. But in case such aid is not available, he has the right of private defence.
Whether or not a person was allowed to use his right of private defence without the recourse of public authorities depends upon the nature of threat of imminent danger. The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
After the actual danger has commenced, the question of applying for protection of the public authorities does not arise.
The law does not expect a person to run away for protection under public authorities when someone attacks on a person in possession of the property. The moment reasonable apprehension of imminent danger to the property commences, the right of private defence is available to the individual. There is no duty on the accused to run for protection of public authorities.
When a person in possession is attacked by trespassers, he has the whole right to drive away the aggressors by application of force. When the person who is in physical possession of the property is dispossessed by the trespasser, he is entitled in exercise of the right of private defence to drive away such intruder provided that the trespasser has not obtained settled possession over the property.
If the accused although has the physical possession of the property but at the time of attack, if he is not present at the spot, is entitled to exercise his right to force aggressor to not to enter into the property or to turn away the aggressor when he comes to know that the trespasser is getting into possession of his property or is attempting to do so.
If there is an imminent danger to the property and the person in possession incurs sufficient injury, he is entitled to defend the act of aggressor without asking for the aid of the state.
When there is no serious loss to the property or no urgency for driving away from the trespasser, the person must recourse to state aid and not exercise any offence under the shelter of private defence. Where such person exercising the right is present on the property at the time trespass is attempted, he would ordinarily have the right of private defence as soon as his possession over the property is actually threatened. There can be an exception to the rule of seeking state aid in case where the aggressor tries to take advantage of the temporary absence of the person who has the settled possession of the property and attempts to trespass to the property.
Just because the location of police station was not away from the crime scene, it does not mean that a person cannot exercise his right of private defence. This can be taken into account if it is proved that could have been timely and effective. The effectiveness of the police help depends on the possibility that timely information to the police and obtaining timely assistance from the police was possible and effective.
In dealing with cases of private defence, a distinction must be made between enforcing a right and maintaining the right.
If the aggressor was only preparing for the attack, this does not mean that the other person has no right of private defence. It must, however, be proved that there was no time to take recourse of public authorities.
