Exception to the Exception of Right of Private Defence

Introduction

Section 99 restricts the right of private defence against acts of public servants. However, there are situations where this restriction does not apply. If a person does not know, and has no reason to believe, that the other person is a public servant, he can still exercise his right of private defence.

Meaning / Definition

The exception to the exception means that even though private defence is generally not allowed against public servants, it becomes available when the defender:

• Does not know the person is a public servant, and
• Has no reasonable ground to believe that the person is acting under lawful authority

In such cases, the law protects the defender as he acts under a mistake of fact (wrong belief about facts).

Modes or Types

Lack of Knowledge of Public Servant

• If a person does not know that the other person is a public servant, he can exercise private defence.
• There must also be no reasonable reason to believe that the person is a public servant.

Acts Under Direction of Public Servant

The right of private defence is available if:

• The person does not know that the act is done under the direction of a public servant
• There is no reasonable basis to believe such authority exists
• The person acting does not inform about such authority
• If written authority exists, it is not shown when demanded

Bonafide Acts vs Illegal Acts

• If a public servant acts in good faith (honestly) under colour of office, private defence is generally not allowed.
• But if the act is clearly unlawful or without authority, the right of private defence can be exercised.

Knowledge of Identity

• The accused must not be aware of the identity of the public servant.
• If identity is known or obvious, the defence cannot be claimed.

Important Case Law

Emperor v. Abdul Hamim

• Policemen entered the house of the accused at night.
• The accused, unaware of their identity, fired back in self-defence.
• The court held that he acted under a mistake of fact regarding identity.
• His right of private defence was upheld.

Distinction / Comparison

Knowledge vs No Knowledge

• Knowledge of public servant: No right of private defence
• No knowledge and no reason to believe: Right of private defence available

Good Faith vs Lack of Authority

• Good faith with authority: Protection to public servant
• No authority (illegal act): Private defence allowed

Practical Example

A person sees someone chasing another with a gun. Believing him to be a criminal, he attacks to protect the victim. Later, it turns out the person was a police officer in plain clothes.

Here:

• The defender had no knowledge of the officer’s identity
• There was no reason to believe he was a public servant

The right of private defence is valid.

Summary

• Private defence is allowed if the person does not know the other is a public servant
• There must be no reasonable reason to believe such identity or authority
• Applies to acts done under direction of public servants as well
• Protection depends on mistake of fact, not mistake of law
• Illegal acts without authority are not protected
• Knowledge of identity is key in deciding the defence