RIGHT OF PRIVATE DEFENSE OF PROPERTY (SECTIONS 103-105 OF IPC, 1860)
Author: Roshni Agarwal, II year of B.A.,LL.B.(Hons.) from Amity Law School, Noida
Section 103: When right of private defense of property extends to causing death[i]
A person may cause death in safeguarding his own property or the property of someone else when there is a reason to apprehend that the person whose death is caused was about to commit or was attempting to commit one of the offenses mentioned in the said section as:
House Breaking by night
Mischief by fire on any building, tent or vessel which is used as a human dwelling or as a place for the custody of property
Theft, mischief or house trespass under such circumstances when there is reasonable apprehension that death or grievous hurt would be the consequence if such right of private defense is not exercised[ii].
In the first three offences, death of a person can be caused who is committing or attempting to commit these offenses.
But, in case of the fourth clause, condition is attached which is that there should be reasonable apprehension of death or grievous hurt. Further, in case of theft, the said right cannot be exercised if the need for its exercising arises because of the intervention of the person who is exercising such right. Also, in case of trespass, such right is not available is case of an open land because Section 103 mentions about house trespass and not criminal trespass.
In case of Ismail[iii], the accused caused the death of a person who had trespassed into his courtyard in the middle of the night by striking him on the head three times with a club. Right of private defense of property under clause 4 of Section 103 granted by the court and the accused was not held liable because he did not know, in the middle of the night in the dark, that how dangerous was the person who had trespassed into his house, was armed or not. So, there was reasonable apprehension of death or grievous hurt.
Section 104: When such right extends to causing any harm other than death[iv]
This section justifies causing of any harm short of death in the exercise of the right of private defense of property if the offense committed or attempted to be committed is theft, mischief or criminal trespass[v]. In such case, the person in possession of property has right to defend against anyone trying to enter his property to prevent himself from getting dispossessed, maintain the possession and eject the accused. (Baljit Singh vs. State of UP)[vi]
Further, this right under section 104 to cause harm is available only if there is no time of having recourse to protection of public authorities. Eg: B enters A’s farm and starts uprooting the crops. B has private defense to cause harm to B other than that causing death in order to prevent his sown crops from being destroyed.
Exception: This right lost when the trespasser enters the property and the trespass is accomplished successfully. Eg: B trespassed A’s land and took its unlawful possession two years ago. Now, A does not have right of private defense against B. Now, he has to take recourse to the remedies available under the law to discharge B from his property and regain possession of it.
The Supreme Court in A.R. Yalve v. State of Maharashtra[vii] held that the right of private defense under sections 103 and 104 is not available in cases where the accused does have the right, title, interest or possession over the disputed land.
Section 105: Commencement and continuation of the right of private defense of property[viii]
The right of private defense of property commences when a reasonable apprehension of danger to the property commences. Thus, commencement of actual danger to the property is not necessary as this right is not a right of retaliation. So, one need not wait until the aggressor starts committing the offense but mere apprehension of it is sufficient in order to exercise this right.
1. Right of Private Defense of Property against Theft
Continues till or ends when:
(i) The offender has effected his retreat with the property i.e. has made his escape and left the property.
(ii) Assistance of public authorities is obtained
(iii) Property has been recovered.
2. Right of Private Defense of Property against Robbery
Continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or instant personal restraint continues. The use of the word “instant” here is important[ix]. The right is available only as long as the fear is instant and not after the robbery has ended, the robber has left the property and one met him the other day.
3. Right of Private Defense of Property against Criminal Trespass or Mischief
Continues as long as the offender continues in the commission of the criminal trespass or mischief. In Hukam Singh[x], the accused (B) forcibly took two carts loaded with sugarcane through the field of A in which there were standing crops, in transporting them to the public passage running by the side of A’s field. Till the time B is in the course of committing such forcible, intentional criminal trespass, A has this right against him. It does not matter that B cannot get out of the field without committing further criminal trespass.
4. Right of Private Defense of Property against House Breaking by Night
Continues as long as the house-trespass which has begun by such housebreaking continues.
In Rizan v. State of Chattisgarh[xi], the Supreme Court ruled that under Sections 102 and 105 of IPC, the right of private defense commences as soon as there arises reasonable apprehension of threat or attack on person or property, and continues till such reasonable apprehension continues to exist.
[i]The Indian Penal Code, 1860 (Act 45 of 1860), s. 103. https://legislative.gov.in/sites/default/files/A1860-45.pdf (Accessed on 03/11/2021). [ii]PROF. S.N. MISRA, INDIAN PENAL CODE 262 (Central Law Publications, 22nd ed. 2021). [iii]Ismail, (1925) 6 Lah. 463. [iv]The Indian Penal Code, 1860 (Act 45 of 1860), s. 104. [v]PROF. S.N. MISRA, INDIAN PENAL CODE 265 (Central Law Publications, 22nd ed. 2021). [vi]Baljit Singh v. State of U.P., 1976 Cr LJ 1745 (SC). [vii]A.R. Yalve v. State of Maharashtra, AIR 1996 SC 2945. [viii]The Indian Penal Code, 1860 (Act 45 of 1860), s. 105. [ix]PROF. S.N. MISRA, INDIAN PENAL CODE 269 (Central Law Publications, 22nd ed. 2021). [x]Hukam Singh, AIR 1961 SC 1541. [xi]Rizan v. State of Chattisgarh, AIR 2003 SC 976.