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30 Nov 2008

Formal Consolidation | 2008 RevEd

Right of private defence against the act of a person of unsound mind, etc.

98. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind, or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Illustrations

(a) Z, under the influence of madness, attempts to kill A. Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

(b) A enters, by night, a house which he is legally entitled to enter. Z, in good faith, taking A for a housebreaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

[Indian PC 1860, s. 98]

Informal Consolidation | Amended Act 15 of 2019

Extent to which right may be exercised

98.—(1) The right of private defence does not extend to the inflicting of more harm than it is reasonably necessary in the circumstances.

(2) There is no right of private defence in cases in which there is reasonable opportunity to have recourse to the protection of a public authority in the circumstances.

Illustrations

(a) Z ambushes A in a secluded area and attempts to kill A. A kills Z while fending off Z’s attack. A is guilty of no offence because, in the circumstances, A had no reasonable opportunity to have recourse to the protection of a public authority.

(b) Z ambushes A in a secluded area and attempts to kill A. A’s right of private defence arises because, at that point of time, A had no reasonable opportunity to have recourse to the protection of a public authority. In the midst of the struggle between A and Z, a police patrol car arrives on the scene. A’s right of private defence ceases the moment A had reasonable opportunity to have recourse to the protection of the police.

[Act 15 of 2019 wef 01/01/2020]

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