Legal Provisions of Section 105 of Indian Penal Code, 1860.
Commencement and continuance of the right of private defence of property:
While section 102 of the Code deals exclusively with commencement and continuance of the right of private defence of the body, this section relates to the same questions with respect of the right of private defence of property. According to the first para of this section the right of private defence of property commences with the commencement of reasonable apprehension of danger to the property. It is not necessary for this defence to arise that offence against property must first be committed or attempted.
The right gets vested the moment reasonable apprehension of danger commences with respect to the property. This para is limited only to the question of commencement of the right and does not go at all towards continuance. The other four paras deal exclusively with the question of continuance of the right, and for different offences different yardsticks have been fixed.
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Against theft the right continues till the offender has effected his retreat with the property, or assistance of public authorities is obtained, or the property has been recovered. The first part of this para has generated controversy because it cannot be said for certain that a particular stage is the exact time when it can be said without doubt that the offender has effected his retreat. Perhaps it may be when he has got clear off or when he has gone beyond the stage of immediate pursuit.
There is also a feeling that till the offender has been brought before the office of justice the right must go on. One thing which may, however, be said is that once the offender has removed the property beyond the immediate reach of the possessor it can be said that he has effected his retreat.
The exact stage of the retreat may be that stage when it can safely be said that to get back his property the possessor must have no option except to take recourse to the law as he cannot take the law in his hands. The second part of this para says that the right of defence continues till the assistance of the public authorities is obtained which means that the right comes to an end with the obtaining of assistance of public authorities.
A problem that may be faced under this part is when the assistance is inadequate such as where a large number of persons come with a view to commit theft but only one police constable without arms has come by way of assistance to prevent the offence being committed.
In such cases the law should perhaps be that the public authority itself is entitled to receive help from the possessor of the property and others which indirectly means that in case of inadequate assistance of the public authorities the possessor of the property and other persons can also use reasonable force for the protection of the property.
According to the third part of this para the right against theft continues till the property has been recovered. This means that after the recovery of the property the defender’s right against theft comes to an end. It must be noted that the word ‘or ‘ has been used after the first and the second parts of this para which means that any one of the conditions would apply at a time, that is to say, that the right against theft continues till any one of these three conditions have been met. In Nga Pu Ke v. Emp. paddy sheaves belonging to the accused were removed illegally by certain person.
The accused attacked the cartmen in whose carts these were being carried away. The cartmen jumped off the carts and ran away leaving the sheaves and the carts. The accused chased and attacked them resulting into death of one of them. The Rangoon High Court held that as the property, the paddy sheaves, had been recovered the accused has no longer any right of private defence in case of theft and were, therefore, liable for causing the death.
According to the third para of the section the right of private defence of property 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. The language of this part is similar to that of section 390 under which the offence of robbery has been defined.
The fourth para of this section states that the right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. Therefore, so long as the offender continues to commit criminal trespass or mischief, the right of defence continues to remain vested in the defender in these two cases.
In Hukam Singh v. State, the accused, with a view to reach to the main road nearby, were driving their two carts loaded with sugarcane through the field of a person on which crops were standing. The Supreme Court held, that person had a right of private defence as the offence of criminal trespass was being committed by them.
It was of no importance that to reach to the main road they had to continue their journey through that field because the main question was as to why did they at all commit criminal trespass in the beginning which ultimately they would have to continue to reach to the main road. Therefore, so long as they continued to commit the criminal trespass, the right of defence remained vested against the same.
In Karamjit Singh v. State, an unarmed Sarpanch of a village went on to a disputed land in possession of the accused who attacked him causing serious injuries. The Punjab and Haryana High Court held that since the victim had committed a simple criminal trespass the defender did have a right of private defence against him but not up to the extent of causing serious injuries because the victim had not given any reasonable apprehension to the accused of committing or attempting any offence.
In Rajesh Kumar v. Dharamvir, the complainant damaged the outer door of the house of the accused which amounts to mischief. The Supreme Court held that the accused was entitled to exercise the right of private defence so long as the complainant continued in the commission of mischief, and since the accused had come to the place of occurrence and attacked the complainant after the latter had damaged the outer door of his house, the accused had no right of private defence.
According to the fifth para of this section the right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues. So where a trespasser leaves the premises after committing house breaking by night, the right of private defence against him comes to an end as the house-trespass which had been begun by the house-breaking had ended.