Question 5

Legal Provisions Governing Private Defence

The IPC addresses private defence in Sections 96-106. Section 99 is particularly relevant, dealing with the use of force likely to cause death, but not intended to cause death. It states that such force may be used in self-defence when a person reasonably believes that death or grievous hurt will be the consequence if the force is not used. Section 100 deals with the right to use force to defend the body of another, and Section 102 clarifies that the extent of force used must be reasonable to the imminent peril. Crucially, the IPC emphasizes the importance of a ‘reasonable belief’ and ‘imminent danger’.

The ‘Bona Fide Fear’ Requirement

The principle that the right to private defence causing death cannot be based on surmise or speculation underscores the necessity of a ‘bona fide fear’ – a genuine and reasonable apprehension of death or grievous hurt. This means the accused must have actually believed, based on the circumstances, that their life or safety was in immediate danger. This belief must be objectively reasonable, meaning a prudent person in the same situation would have held the same apprehension. The prosecution must prove beyond reasonable doubt that such a fear did not exist.

Judicial Interpretations and Landmark Cases

Several landmark cases have clarified the application of these principles:

• State of Maharashtra v. Shankar Kisan Dhotre (1988): The Supreme Court held that the right of private defence is available only when there is an imminent threat, and the force used must be proportionate to the danger. Mere apprehension of future harm is not sufficient.
• Inder Raj Malik v. Sunita Malik (1986): This case emphasized that the test of reasonable apprehension is not what the accused actually thought, but what a reasonable man would have thought in the same circumstances.
• Joginder Singh v. State of Punjab (1980): The court reiterated that the apprehension of harm must be genuine and immediate, not based on past events or future possibilities.

These cases demonstrate a consistent judicial emphasis on the requirement of a real, present, and reasonable threat to justify the use of deadly force in self-defence.

Determining Apprehension: A Question of Fact

The determination of whether a person was genuinely under a ‘bona fide fear’ is always a question of fact, to be decided by the court based on the evidence presented. This involves a careful evaluation of the circumstances surrounding the incident, including the conduct of the assailant, the weapons used, the surrounding environment, and the accused’s state of mind. The court will consider all relevant factors to determine whether a reasonable person in the accused’s position would have reasonably believed that their life or safety was in imminent danger.

Distinction between ‘May’ and ‘Must’

It’s important to note that the IPC uses the word ‘may’ in Section 99, indicating that a person *may* use force likely to cause death if they reasonably believe it is necessary. This does not create a *duty* to use such force, but rather acknowledges the right to do so when justified. The use of force must always be the last resort, and only to the extent necessary to neutralize the threat.