Misuse Of Private Defence As An Exception To Criminal Liability

Jahnvi Agarwal, School of Law, Christ (Deemed to be) University

ABSTRACT

The broad expression "necessity knows no law" serves as the basic foundation for the right of private defence. An act performed under an expression of private defence would not constitute an offence under Section 96 of the Indian Penal Code. He has the option to use violence against another person during this procedure. However, the right to private defence cannot be used to excuse an aggressive act. No one is authorised to incite violence with the intent to murder.

For private defence to be legal, it is necessary to fulfil some conditions. This including the defendant's reasonable belief that there is a "present" or "imminent" danger of armed aggression and that the use of lethal force is absolutely "necessary" and "proportionate" to repel this unlawful threat. The problem here is that private defence relies on the individual's subjective perception of the threat. Evaluating the reasonableness of this perception, especially in cases of mistaken identity or mental health issues, can be complex for the courts. Also determining when an individual's response escalates beyond private defence into aggression can be challenging. The legal challenges surrounding private defence can, unfortunately, be exploited as advantages to misuse private defence as a shield for criminal actions.

This paper tries to delve into the various instances where the exception to criminal liability under private defence has been misused as a result of the challenges faced by courts in determining such cases. Moreover, the paper also tries to look into lacunae or loopholes in the provisions pertaining to private defence in the Indian Penal Code. Private defence law reforms that address potential gaps and ambiguities are necessary to combat the exploitation of private defence as an advantage. These reforms also call for careful examination of the particulars of each case, an objective assessment of the evidence, and objective evidence review. In order to guarantee a fair and reasonable criminal justice system, it is essential to strike a balance between safeguarding legitimate private defence claims and avoiding misuse.

Keywords: Private Defence, Misuse, Imminent, Proportionate, Aggression