When the Right Begins and When It Ends

In one line

The question when the right of private defence begins, and when it ends, is answered by two sections: the right of the body opens on a reasonable apprehension of danger and closes when that apprehension ends; the right over property opens the same way and closes at a moment the Sanhita fixes separately for each of the four offences.

Section 40: the body

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

Three things are packed into one sentence.

The trigger is an apprehension, not an injury. The words "though the offence may not have been committed" put the opening of the right before the blow. A defender who has already been hurt is not in a better position under this section than one who has not; he is merely in a position that is easier to prove.

The trigger is reasonable. An apprehension the facts do not support is not enough. This is what keeps the section from covering the nervous and the aggressive alike.

The right is co-terminus with the apprehension. It does not last for the incident, or until the police arrive, or until tempers cool. It lasts exactly as long as the reasonable apprehension of danger to the body lasts, and it ends with it.

Section 43: property, offence by offence

Property offences finish at different moments, so the Sanhita fixes a closing event for each. The right of private defence of property

(a) commences when a reasonable apprehension of danger to the property commences;

(b) against theft continues till the offender has effected his retreat with the property, or either the assistance of the public authorities is obtained, or the property has been recovered;

(c) against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint, or as long as the fear of instant death or of instant hurt or of instant personal restraint continues;

(d) against criminal trespass or mischief continues as long as the offender continues in the commission of the criminal trespass or mischief;

(e) against house-breaking after sunset and before sunrise continues as long as the house-trespass which has been begun by such house-breaking continues.

Clause (b) is the one to know by heart, because it names three independent closing events and any one of them shuts the right: the retreat with the property, the obtaining of the assistance of the public authorities, and the recovery of the property. A defender who chases a thief who has got clear away is outside the right, and the reason is in the section, not in a judge's discretion.