Private Defence : General Defences in Tort

The right of private defence is the right to protect one’s own person and property against the unlawful aggression of others. The law permits use of reasonable force to protect one’s person or property. The right of private defence is given statutory recognition in Sections 96 to 106 of the Indian Penal Code, 1860.

The right must be exercised when there is

(a) real and immediate threat (not imaginary and remote), and

(b) a reasonable apprehension of such threat.

A fear that one might or will be attacked in near future will not justify the exercise of this right.

The protective measures employed must be relative to the danger ahead, violence used must be proportionate to the injury or threat to be averted and must not exceed such limits. Thus, if A strikes B, B cannot be justified in drawing his sword and cutting off his hand. However, in such situations it cannot be expected of a person to minutely calculate the correct proportion of force to be used in defence. What force is necessary depends on the circumstances of each case.

For the protection of property also the law permits taking of such measures as may be reasonably necessary for the purpose. In Bird v. Halbrook, (1823) 4 Bing 628, the defendant had put up spring guns in his garden without fixing any notice about the same. The plaintiff, a boy, in search of his strayed away fowl and having no knowledge of the existence of the gun, got over the garden wall, and was injured. The court held the defendant liable as he exceeded the right of private defence to his property.