Right of private defence | The Daily Star
12:00 AM, November 03, 2015 / LAST MODIFIED: 12:00 AM, November 03, 2015

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Right of private defence

Punishing someone without lawful authority is not accepted in any civilised legal system. This principle applies to irrespective of any innocent or accused person under trial. Inflicting punishment is the absolute authority of the State mechanism. However, it does not necessarily mean that no one can prevent any crime that is going to happen before him/her. It is reasonably expected that citizens ought to protest against oppression and be the defenders against any unjust act. But this protest must be reasonable and in a defensive mode. 

Defending one's own life and property against any kind of offence has been recognized in the legal system of Bangladesh through the idea of 'private defence' in its Penal Code, 1860. According to section 96 of such, nothing is an offence which is done in the exercise of the right of private defence. According to section 97, anyone has the right to defend his/her own body or property and of another person facing threats as such. 

The law of private defence is founded on two principles: firstly, everyone has the right to defend one's own body and property as also the body and property of another. Secondly, the right cannot be used as a matter of pretention for justifying aggression. This right can never be exercised to take revenge over the alleged offender but rather only as a means of one's own protection; it is not reckless, unrestricted and absolute right. 

However, private defence must be weighed with due prudence. It is totally justified on certain circumstances. As per the aforementioned sections of penal code, it is clear that an unlawful offender can never claim private defence. Anyone claiming this right should use force only intending to prostrate the offender or make the offender disable so that he/she would not be able to commit the crime. Killing of the offender should not be the primary intention unless he/she faces death apprehension. 

Section 99 of the Code limits the rights of private defence in three cases. Firstly, where a public servant does an act strictly in accordance with law, he/she commits no offence at all; and in that scene private defence will not be applicable. Secondly, if a public servant acts in good faith without his jurisdiction, there is no private defence unless it causes an apprehension of death or grievous hurt.  Lastly, if any person gets enough time to take protection of the public authorities, the right of private defence is not applicable to him. 

Section 100 of Penal Code provides that right of private defence of body extends to causing death or any other harm to the assailant, where the assault can either reasonable cause the apprehension of death, grievous hurt, rape, gratification, unnatural lust, kidnapping or abduction or wrongful confinement. 

According to section 102 of the Code, the right of defence in case of body commences as soon as a reasonable apprehension of death of the body arises from a threat or attempt to commit the offence and ends when the other party is disposed of the weapon. In case of property, the right of private defence commences when there is a reasonable apprehension of danger to the property. The right in relation to the property continues till the apprehension of danger or actual danger ceases. In case of right to private defence, the burden of proof lies on the person who claims he/she has exercised this right.  

The writer is a Student of Law, Manarat International University, Dhaka.

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