Private Defence, Necessity and Provocation
Chapter Ninety-Eight
Syllabus topic 8, "Right of Private Defense"
Pages 382 to 386 of 711
In one line
Private defence answers unlawful aggression and makes the act no offence; necessity answers a danger nobody is to blame for and makes the act no offence; provocation answers a loss of self control and does not acquit at all, but reduces murder to culpable homicide.
The three provisions
Private defence, section 34 of the Sanhita. Nothing is an offence which is done in the exercise of the right of private defence. The right itself is in sections 35 to 44, and it is limited by section 37.
Necessity, section 19 of the Sanhita. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. The Explanation adds that it is a question of fact whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk.
Provocation, Exception 1 to the section of the Sanhita defining murder. Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or of any other person by mistake or accident. Three provisos cut it down: the provocation must not have been sought or voluntarily provoked by the offender as an excuse for killing or doing harm; nor given by anything done in obedience to the law, or by a public servant in the lawful exercise of his powers; nor given by anything done in the lawful exercise of the right of private defence.
The table
| Private defence | Necessity | Provocation | |
|---|---|---|---|
| Where | Sections 34 to 44 | Section 19 | Exception 1 to the murder section |
| What the accused is answering | An unlawful act by the person harmed | A danger, from any source, often blameless | A grave and sudden wrong that destroyed his self control |
| Whom the harm falls on | The aggressor, and under section 44 an innocent bystander at risk | Whoever the avoiding act reaches, usually innocent | The provoker, or another by mistake or accident |
| State of mind required | None special; the act may be deliberate | No criminal intention, and good faith | The loss of the power of self control |
| Test | Reasonable apprehension, within the descriptions, within section 37 | Whether the harm avoided was so imminent and of such a nature as to justify the risk, a question of fact | Whether the provocation was grave and sudden, a question of fact |
| Effect | No offence | No offence | Murder becomes culpable homicide |
| Timing | Only while the apprehension lasts | While the danger is imminent | While self control is lost, before cooling |
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