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| Right of private defence is defensive right available only when circumstances so justify: SC | | | agencies
NEW DELHI, June 14: The Supreme Court Tuesday said that the right of private defence is necessarily a defensive right that is available only when the circumstances so justify it and acquitted an ex-BSF Jawan for the charges of murder of an alleged smuggler on the Indo-Bangladesh border.
The top court said that the underlying factor should be that such an act of private defence should have been done in good faith and without malice.
A bench of Justices BR Gavai and Hima Kohli said that the circumstances under which the right to self-defense is available are elaborated in the Indian Penal Code.
"To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid", the bench said in its verdict.
It added that at the same time, the courts must keep in mind that the extent of the violence used by the accused of defending himself or his property should be in proportion to the injury apprehended. "This is not to say that a step-to-step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not," it said.
The bench said that the Court's assessment should be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting in the knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to an immediate defensive action, etc.
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