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 Section 96 Penal Code:-

 Nothing is an offence if it is done in the exercise of private defence
 A person is justified to retaliate when attacked provided that it is
proportionate with the attack
 Case: Mahandi AIR (1930) (L) 93

 Section 97 Penal Code:-

 Every person has a right to defend:-
 His own body and another person’s body against any offence affecting the
human body
 The property of himself or another person either movable or immovable
from any offence under the definition of theft, robbery, mischief or criminal
trespass OR attempt to commit those offences

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 Section 98 Penal Code:-

 The person has the right of private defence against an act which would
be an offence, but it is not an offence because of:-  It is under Explanation 1
 Reason of youth minor
 There is no right of private defence against an act which does not
 Want of maturity of understanding-minor
cause death or grievous hurt and it is done in good faith under
 Unsoundness of mind
color of his office, though he may not strictly justified by the law.
 Intoxication of the person who committed the offence
 Misconception of fact-mistake  But it will deprived his right if he knows or have reason to believe
that the person is a public servant
 Restrictions of the right:-
 It is under Section 99 where the right of private defence is restricted to  Case: Bha’woo Jiva’ji v Mulji Daya’l
be used:- The conviction against the accused was reversed on the ground
 A public servant acting under his color of his office that the accused was on duty and acting under his color of office
 Acting under direction of public servant although he may not strictly justified by the law because he acted
 Time to recourse to public authorities in his good faith and his act was not cause the apprehension of
 Cause no more harm than necessary death or grievous hurt

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 It is provided in s. 99(3)
 It is under Explanation 2 and s. 99(2)
 When the accused has time to recourse to public authorities, the
 There is no right of private defence when:- right of private defence will be ceased
 Act does not reasonably and does not cause any apprehension of
 Case: Morzuki Salleh (2004) 5 CLJ 127
death/grievous hurt
 It is done under the direction of public servant or attempt to be done The accused was charged for murder and the court held that he has
under the direction of a public servant and acting in good faith time to recourse to public authorities during the second incidents
 But it will deprived his right if he knows or have reason to believe that and he did not do so.
the person is acting under the direction or he has authority in writing
However, the decision was reversed during the appeal and the court
unless he produce it when demanded
held that the first and second incidents are separated although it
was connected with the first incident. When he was attacked during
the second incident, he has no opportunity to escape and he has no
prior knowledge and could not have expected that the second
incident would occurred.

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 It is provided by S. 99(4) Penal Code:-  It is provided by s. 100

 In exercise of private defence, the accused should not inflicted more
harm than necessary/ the defence must be proportionate to the attack  The right extends to causing death or any harm to the assailants
Case: Halim Din (1999) 4 CLJ 15 where the offence is:-
 Assault reasonably causing the apprehension that death will
The court held that the accused has exceeded his right of defence in
otherwise be the consequence
using reasonable force when he fired the gun because the deceased
was only armed with a piece of wood  Assault reasonably causing the apprehension that grievous hurt
will otherwise be the consequence
 Assault with intention to commit rape
 Assault with intention to gratify unnatural lust
 Assault with intention to kidnap or abduct
 Assault with intention of wrongfully confining a person under the
circumstances causing him to apprehend he will unable to have
recourse to public authority
 If the offence does not fall under s. 100, the right of defence only
extends to cause any harm except death:-s.101

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 Case: R v Cumming where the court held that the accused was not
guilty when he fired the gun towards the deceased when he saw
the deceased armed with the spear and pointing towards Dr
 S. 102 Penal Code:-
Middleton and in his mind he thought the deceased intended to
 The right commences as soon as a reasonable apprehension of danger
plunge the spear to Dr. Middleton
to the body arise from a an attempt or threat to commit the offence,
though the offence may not have been committed yet  Case: Wong Teck Choy where the court held that in deciding
whether or not there is apprehension of death or grievous hurt, the
 The source of apprehension can be the weapon, the manner of its
weapon used, the manner of using it, the nature of assault and other
use, the mental and physical attitude of the person uttering the
surrounding circumstances need to be taken into account.
threat, his capacity to execute the threat and etc.
 It is for the court to decide that the violence threatened is sufficient
to cause in the mind of the accused a reasonable apprehension of
grievous injury.

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 Case: Tony Beliang v PP (2003) 1 CLJ 482 : a person who faced the danger is
not required to retreat or seek refuge before he is permitted to exercise his
 The right commences as soon as apprehension of danger arises and it right of private defence. He is permitted to use all reasonable force to protect
continues so long as apprehension of danger to the body continues. himself until he is free from danger.
 Case: Dato Balwant Singh (No. 2) (2003) 3 MLJ 395 : the court ruled that:-
 The threat must be imminent and real and the person must feel a
 The right of private defence commence as soon as there is reasonable apprehension
reasonable apprehension o death or grievous hurt as a result of assault of danger to the body of a person and the right continues so long as the danger to
contemplated on him. body or life exist.
 Although no man can be expected to assess with scientific accuracy the precise
 Case: PP v Yeo Kim Bok (1971) 1 MLJ 204 : the court held that when a amount of force that is necessary to defend himself from an attack, any retaliation in
person has assumed the threat is a dangerous form, he is allowed to the exercise of it should not exceed what is reasonably necessary to avert the
assailant.
use his right to defence himself, and pursues his defence a little further  A man who is about to be attacked does not have to wait for his assailant to strike the
than to perfectly cool by-stander. The question is not whether there is blow first. He need not wait till he is actually attacked or inflicted with injury in order to
an actual continuing danger but whether there was a reasonable react. He is not obliged to run away, the law does not require the citizen to behave like
a coward. If he is unable to escape he may turn around and attack.
apprehension of danger
 Case: Ngoi Ming Sean (1982) 1 MLJ 24 where the accused was acquitted
 A person is not deprived his right the moment the attack ceases because there was a reasonable apprehension of danger of life when he was
because the weapon used by an attacker has come to his possession cornered by the deceased although the deceased was unarmed because they
were struggling for the revolver during the fight.
 Case: Musa bin Yusoff (1953) MLJ 70 the court held that the accused is
 Case: Lee Thian Beng (1972) 1 MLJ 248 : the accused was charged for causing
entitled to secure his victory as long as the contest still continues. He is the death of the deceased. The accused was a chief police officer who off duty
not obliged to retreat but may pursue his adversary till he is out of the and he did not introduce himself during the quarrel with the deceased. The
danger and if in conflict he killed the person, then it is justifiable. The court held that the use of force is unnecessary as the accused need only to
accused was acquitted although he managed to wrestle the knife from introduce himself as the police to nip the argument. There was also no occasion
or opportunity that the deceased would aim the gun towards the accused when
the deceased and stabbed the deceased in chest. what he did only to fire the gun into the air.

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 The right of defence should not be converted into the right of

reprisal.  The right of private defence ceased when there is no more danger
or apprehension to the body or life
 Case: PP v Abdul Manap (1956) 22 MLJ 214
 Case: Nachitin v State AIR (1993) 223
There was a dispute between the accused and the complainant. The
complainant struck the blow first during the quarrel and in The right of defence has ceased at the time since as soon as the
response the accused grabbed a dagger and stabbed the assailant had left the hut, the danger dominating the accused was
complainant. The court held the accused had to use reasonable over.
force to retaliate to the attack and to stop repeated blow but the
court was not convinced that the accused was really defending
himself but more on teaching the complainant a lesson when he
had the nerve to attack the accused. It is true that one does not
have to use ‘golden scale’ to weight the quantum of force but the
frame of mind in which the force was applied was of importance.
The court entitled to infer what the frame of mind was from the
evidence and did not consider that the accused was properly
acting within the limits of private defence.

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 There must be reasonable apprehension of danger against the

property but it must be imminent so as to amount to commit an
offence
 It is provided by s. 97(b) Penal Code
 Case: Rafi v Emperor AIR (1949) Lah 375
 It is subjected to the restrictions in s. 99
The accused was not entitled to use the right of defence against the
 It extends to cause the death or any other harm to the doer if it falls property as the threat was not imminent as there was no evidence
under the offence listed in s. 103:- that any member of the party had made preparations to carry on
 Robbery the threat in carrying the inflammable materials or an attempt to
 House-breaking by night set the fire. The accused was guilty for causing the dead of one of
 Mischief by fire committed on any building, tent or vessel is used as the member of the party when he shot the deceased.
human dwelling / custody of property
 Theft, mischief or house-trespass as may reasonably cause
apprehension that death/grievous hurt will be the consequences
 If it does not falls under the listed offences in s. 103, it only
extends to cause any harm other than death as in s. 104.

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 S. 105(2) Penal Code:-

 It is provided by s. 105 where it exists and continues:-  The right against theft continues until the offender:-
 For theft case, till the offender has effected his retreat with the property  Has effected his retreat with the property
/ till assistance of public authorities is obtained / till property recovered  Till the assistance of the public authorities is obtained, or
 For robbery case, so long as the offender causes/attempt to cause any  Till the property has been recovered
person death /hurt/wrongful restraint/ so long as the fear of instant
death /instant hurt/instant of wrongful restraints continues  Effected his retreat with property:-
 It can be said the offender can probably be said to have effected his
 For criminal trespass case, so long as the offender continues in the
retreat with the property when he has once got clear off, having escaped
commission of criminal trespass/mischief
immediate pursuit or pursuit not having been made
 For house-breaking by night, so long as house trespass which has
 If the offender run away leaving the property behind, the right of private
been begun by such house-breaking continues
defence against property would comes to an end. The owner is not
justified in pursuing him and assaulting him:- Case: Rakhia AIR (1934)
Lah 595
 Case: Amar Singh v State of Rajasthan where the court held that the
right has comes to an end when the offender has finally succeed in
finding ways to escape from the hot chaser. It can be taken that the
offeder has effected his retreat and the right has ceased.

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 Property is Recovered:-
 Assistance of Public Authorities Obtained  It is dependent with the first condition which is “the offender has
 Case: Kabiruddin v Emperor 35 Cal 368 where a person prefers to use affected his retreat”.
force in order to protect his property but he has the opportunity to  The right of the accused has ceased when the property has been
recourse for public authorities, he should be made liable for causing the recovered and the offender has affected his retreat.
harm.
 Case: Jarha Chamar v Surit Ram (1907) 3 Nag LR 177 where the
 Case: Punjabro v King Emperor (1945) ILR where in the court held that
the accused has was not entitled for the right of defence against the court held that the complainant had no right to forcibly take
property since he had a chance to seek for assistance from the public possession of the camel after the offender had reached his home
authorities because he had time to call his followers. with the stolen property.

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