A Private Defence: A general valid defences against a Tort Committed

Every person has the right to protect his property or person and for this purpose he can use necessary force. Thus, if a person used necessary force to protect his person or property and causes harm to another person, no action can be brought against him.

There are two conditions for the use of force for self-defence. First, the use of force for self-defence will be justified only when there is imminent threat to the person or property of a man. Secondly, the use of force must be in the proportion in which it is necessary in the circumstances. In other words, the use of force should not be more than is the anticipated harm, for example, if a person strikes me, I cannot be justified to use sword or gun against him in self-defence. The force should not be excessive. What force is necessary in the circumstances, in order to protect person’s property, by a person, is a difficult question to decide.  This depends on the facts and circumstances of each case.

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Sections 97 to 106 of the Indian Penal Code contain the provisions for the protection of person and property of a person.

The defence of self help extends to the protection of wife and members of family. The master and the servant may also take this defence against each other.

Protection of Property: Every person has the right to use reasonable force for the protection of his property and for that purpose he can take such measures which may be necessary. However, the exercise of the right is subject to two conditions. First, the force used for removing a trespasser from the premises must be reasonable and secondly, the plaintiff must be in possession of the premises.

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In Holmes v. Wage, the plaintiff and defendant both were members of a cricket club. In a match the defendant was playing as a member and he plaintiff was a spectator. During the match the defendant asked the plaintiff to play in place of a player who could not come in time. He agreed to play, but became unhappy with his dictative words. The defendant ordered him to either take off players jersey or leave the playground. The plaintiff refused to do so. By the order of the defendant the plaintiff was forcibly removed from the playground. The plaintiff brought an action for assault against the defendant. The defended contended that the playground was in his possession and therefore, on refusing to obey his orders he had right to remove him from the playground. It was held that the playground was in the possession of the club and not in the defendant’s possession and, therefore, he was liable.

If my neighbour’s dog attacks me or my tamed animals, then I have right even to kill him if no other means are available for self defence.

In Creswell v. Sirl the defendant’s shot the plaintiff’s dogs because it was chasing and attacking defendants sheep and pigs. The court of appeal laid down the following rules:

The burden of proof is on the defendant to justify the preventive measures of shooting. For this purpose he has to show the following things:

(1) that at the time the dog was either attacking the animals or if it were left free it would renew the attack; and

(2) that there was no other means other than shooting to stop the attack or prevent such renewal and defendant having regard to all the circumstances in which he himself, acted lawfully in shooting the dog.

For the protection of property, fixing of broken pieces of glasses or spikes on the boundary wall or keeping a fierce dog can be justified. A trespasser who enters such a house voluntarily takes the risk from such security measures. But now, it is accepted that measures adopted for the protection property must be reasonable..

In Ramanuj Mudawali. v. M. Gangan, the defendant had put up live electric wire on his premises for security purposes but he had not given any notice about the same. When the plaintiff was going to his house through the defendants property at about 10 O’clock in the night he was seriously injured by electrocution. It was held that the defendant was liable for the damages.

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