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Thursday, September 24, 2015, Aswin 9, 1422 BS, Zilhaj 9, 1436 Hijr


Right to Private Defense
Right of Private Defense : where defense is not an offence
Nazmun Nahar
Published :Thursday, 24 September, 2015,  Time : 12:00 AM  View Count : 29
Private defense is a very common term to people throughout the world especially in developed countries. But what about the people residing in Bangladesh? How much are they concerned about their rights including the one of their private defense? Recently in the month of march of 2015, a girl student namely Pradnya Mandhare, 20, was attacked by a drunk sex attacker in broad daylight, unlike many other girls she fought back where a crowd of 50 people was enjoying the scene. Not only she fought back but also belted him with her bag and dragged him to a police station. Yes, she exercised her right of private defense and committed no wrong. The sole purpose of establishing this right was not to let the human spirit degrade by running away in the face of threat and not to become a victim.
Case study 1:
Sabina, an 18-year-old girl, resides in her sister's flat in Dhaka. Due to upcoming Eid, almost all the members of the flat have left Dhaka for their beloved village for celebrating Eid leaving her and a house maid. She was unwilling to go home as the upcoming Admission exam is about to begin after Eid. On that fateful day, Babul, one of the caretakers of the building, in the name of checking the gas line entered the flat. Ffinding Sabina alone in the flat he could not convince himself to waste the opportunity, he grabbed her hand and tried to get on top of her body. In this jostling her clothes were torn apart, which extremely incarcerated her mind that no way she could escape from this rape-assailant. But fortunately, during this jostling she managed herself to find a Flower vase and throw a blow onto his head right away. The blow was so deadly that Babul could not escape but succumbed to his injuries.
Later, Sabina was arrested as an accused of murder, now she is in police custody awaiting charges to be framed. Even after being an imaginary scenario, this could be a part of any girl's life story whereas committing offences and being violated by those are two common cases in our social life.
Apparently in our layman-society many people can think that Sabina took the law in her hand, and violate rule of law therefore, she should be punished for committing murder. Is that so? Law is not as blind as those laymen. It gives protection to victims by prescribing their right to private defense.
So let's see in this following case what kind of protection Sabina can afford from law, whether she shall be punished for committing murder or she shall be released on the plea of right of private defense. As per section 100 of the penal code she is 100% protected. It prescribed that the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant if the offence of An assault with the intention of committing rape.
Now as you see there exists some situation when you can take the law in your hand and proceed accordingly
Case study-2:
Habib, a 32 year-old-businessmen, in Chittagong was coming to his home in comilla for celebrating Eid-ul-Adha. At about 2 a.m. on the highway near B.Baria a group of 5 people in a white colored microbus obstructed his car and told him to come out, they addressed themselves as D.B. (detective branch) personnel, but failed to produce any arrest warrant or authorized documents and ID. When he was arguing whether they were DB or not, one of them came forward and slapped him and warned him that he would be shot if he argues further. They tried to rope him and steal his car, finding no other way habib shoot at one of the miscreants by his licensed gun, they also shot at him but missed. As the situation grew dangerous the group fled away leaving the shot one. Within the time of arrival of ambulance the miscreant succumbed to his injuries.
Now apparently Habib has not committed any crime though he caused the miscreant's death still he is protected under section 103 of the penal code-1860, which stated that, The right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, be an offence namely-
Robbery; House-breaking by night; Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised; so as you see here Habib is protected under law.
In 1989, there has been a case where the deceased, whose wife died about 12 years back, took the accused to his room on pretext of getting him a job. Later, the plea was that the deceased wanted to commit sodomy on the accused forcibly and therefore, he stabbed him in order to save his honour and life. In that case of 1989 [PCrLJ, p- 504], it was held that the accused had complete right of private defence in circumstances and didn't commit a wrong. The same right is confirmed in Section 100 of The Penal Code, 1860 for our people.
The provision of right of private defense has been enumerated from Section 96 to 106 of The Penal Code, 1860. But application of those defensive rights requires right spirit and serious justified circumstances at the end. Because, this right is basically preventive, not punitive. This right arises as soon as a reasonable apprehension of danger arises from an attempt or threat to commit the offences. Mere belief or mistake cannot be justified in this regard.

The writer is a Law student University of Dhaka











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