Right of private defence available only when the circumstances so justify it: Supreme Court

Read Time: 09 minutes

The Supreme Court on Tuesday held that right of private defence is necessarily a defensive right which is available only when the circumstances so justify it.

"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", a division bench further observed.

Top Court added that while the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended, a step to step analysis of the injury that was apprehended and the violence used is not 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.

Top Court further specified that a court's assessment would be guided by several circumstances including:

  1. the position on the spot at the relevant point in time,
  2. the nature of apprehension in the mind of the accused,
  3. the kind of situation that the accused was seeking to ward off,
  4. the confusion created by the situation that had suddenly cropped up resulting the knee jerk reaction of the accused,
  5. the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc.

The underlying factor should be that such an act of private defence should have been done in good faith and without malice, Court observed.

With this view, the Court decided an appeal filed by Ex. Constable Mahadev who was convicted for life imprisonment for an offence committed under Section 46 of the Border Security Force Act, 1968, that is to say for murder punishable under Section 302 of the Indian Penal Code, 1860.

It was alleged that by firing shots from his INSAS Rifle bearing Butt No.503, Body No.16397/159 Mahadev caused the death of a civilian namely Nandan Deb.

Mahadev had taken the plea of private defence before the General Security Force Court (GSFC) which was rejected by it.

A bench of Justice BR Gavai and Justice Hima Kohli while examining the plea of self-defence raised by Mahadev noted that there was rampant smuggling in the area where Mahadev was posted.

"...border fencing in the area in question had been erected just a few months before the incident had taken place. Prior to that, many villagers used to freely indulge in smuggling activities by crossing over to the Bangladesh side and vice versa. A couple of months after the fencing had been fixed along the International border with Bangladesh, there was an incident where smugglers had assaulted one of the members of the Battalion when he was trying to prevent them from crossing the border....", the court noted.

It was also found that the deceased used to indulge in smuggling activities and his name was mentioned in the list of smugglers maintained by the BSF.

Top Court also relied on the testimony of CT H Vijay Kumar who deposed that when he and Mahadev were patrolling in the area, they saw 6-7 persons rushing towards them from the side of Bangladesh, carrying weapons like ‘Dah’, ‘Bhala’ and ‘Lathi’ in their hands.

"Apprehending an imminent and real threat to his life, the appellant had fired from his rifle at the intruders in self defence and the deceased who was a part of the group, sustained bullet injuries and had fallen on the ground. The trajectory of the bullets indicates that the firing took place from a higher position vis-à-vis the deceased. But that does not necessarily mean that the appellant had summoned the deceased and made him crouch on the ground before shooting at him, as assumed by the High Court...", the top court further noted.

Thus, while noting that Mahadev was suddenly confronted by a group of intruders, who had come menacingly close to him, were armed with weapons and ready to launch an assault on him, the top court held that the plea of private defence could be taken by Mahadev as he was left with no other option but to save his life by firing at them.

The appeal was thus partly allowed and Mahadev was held guilty for the offence of culpable homicide, not amounting to murder as contemplated under Exception 2 to Section 300 IPC.

Case Title: EX. CT. MAHADEV vs. THE DIRECTOR GENERAL, BOARDER SECURITY FORCE & ORS.