Firstly, a very Happy Diwali to all of you! I hope you enjoyed it as much as we did (evident from the inactivity over the last few days). Now, down to the brass tacks.
In this article, we deal with two defences simultaneously, since the first, largely, forms the basis of the second.
It made no sense to us put either as a stand-alone, as is done to death by your modules, with little effect, and we would advise you to understand them as inter-linked concepts – just the way they are – explained below.
‘Plaintiff the wrongdoer’ is based on the principle of “ex turpi causa non ortitur actio”, meaning that, “out of a wrongful cause, no action arises”.
In such a case, the plaintiff has no legal recourse since the harm caused to him was a result of some wrong of his own doing.
‘Plaintiff the wrongdoer’, more than being a defence, is just another way of stating the said principle. You might get the sense that this principle forms the basis of some other defences as well.
Rightly so.
For example, in case where a twenty-something Abhik attacks a person, and the person responds in a similar way to protect himself, the person is said to be using his right of private defence; Abhik could have reasonably assumed that the person would defend himself, to the extent of hitting him back in self-defence, thus he knowingly consented to suffer that harm (volenti non fit injuria); and finally, the essence of the other two defences, it was Abhik’s wrongful act which caused him the damage (plaintiff the wrongdoer).
Speaking of the right of private defence (RPD), this can be used by a defendant when he used force only to save himself from another harm, which is usually of a similar or greater degree, and in the process ended up causing harm to another.
As in the above example, Abhik had attacked the other person, and the person hit him back in the same way, in self-defence. Since the act was provoked by Abhik himself, as he caused the defendant to think that the latter would be hurt if he did not defend himself, the defendant can claim this defence if Abhik is hurt in the process.
This right can be exercised when a person is under the reasonable apprehension of immediate threat/attack towards:
- His own person (body) or property; or,
- Another’s person or property.
Apart from that, the restrictions on the exercise of RPD are:
- That the force used by the defendant cannot be more than the threat apprehended, i.e., has to be proportional.
- The threat must be immediate, such that you do not have the time for legal recourse and are compelled to use force causing harm to the plaintiff.
- The harm caused by the defendant cannot be for revenge. That is natural, since vengeance will take some time and deliberation, even if that is less than one minute, which removes the factor of immediacy.
A frail old man threatens you with a blunt stick, because you broke his window with a hooked six, for the seventh time in the last three months. He is progressing towards you slowly, and is a hundred metre away; enraged by the fact that you did not recover your precious cosco ball on all of those seven occasions, you cannot just jump onto a T-90 tank, parked in your backyard, and fire away. That. Is. Wrong. Unfair, too.
How did you get that tank in the first place?
The law believes that you should be as honourable and fair as a Musketeer, even when the ‘fight’ was provoked by the other person; lathi goes with lathi, sword with sword, musket with musket, so on and so forth. Basically, a battle of equals.
However, that is not absolute. You have to balance this with the circumstances.
For example, if a manic serial killer is attempting to beat you to death with a stick, or is approaching you menacingly with a knife, you can draw a gun, provided you had no other way to defend yourself apart from using the gun.
Ultimately, there is a balance required between the harm apprehended, and the immediacy of the person to defend himself from that harm.
So, even if the most harmless of instruments is used to result in your immediate death, you can resort to something which is evidently harmful to save yourself. The mode of causing that harm, thus, is not the most relevant element, because we have understood the difference between the harm that can be caused with a blunt stick by a frail old man and a manic serial killer.
Circumstances are crucial here.
So, to sum up RPD, we have four points for revision:
- The defendant must be under the reasonable apprehension of hurt, to his own person or property, or to another’s person or property.
- The force used must be proportionate to the threat that the defendant apprehends. However, if the defendant inadvertently ends up causing more harm than necessary in the exercise of RPD, he will still be successful in his defence, as long as he acted out of a reasonable apprehension and used proportionate force (the harm that will be caused, in a situation where one has to act fast, is not entirely in his control).
- The harm apprehended will depend on the surrounding circumstances.
- Notwithstanding, if the force used was grossly disproportional and unnecessary, then the defendant will have to pay reduced (in accordance with the plaintiff’s liability) damages .
Practice Questions:
Principle 1: “ex turpi causa non ortitur actio”, meaning that a claim, which arises out of a wrongful or unlawful cause, is not actionable.
Principle 2: Every person has a right to defend his own person, property or possession against an immediate harm, and to that end, may use reasonable amount of force.
Apply the given Principles wherever applicable.
1. Ferdy was injured when his friend Anthony crashed the car in which he was a passenger. The crash because was driving negligently in an attempt to escape from the scene of the burglary which both of them had committed. Anthony was drunk.
a. Ferdy will be able to claim since it was out of Anthony’s drunkenness that the crash occurred.
b. Ferdy will not be able to claim as they both had committed the burglary together and the escape was a part of the burglary itself.
c. Ferdy will be able to claim damages since the escape was a not a part of the burglary.
d. Ferdy will have no claim since it was his own responsibility to ensure that Anthony could drive properly, as they were co-participants in the burglary.
(b – it is a question of fact, whether the escape was a part of the burglary or not. There can be no reason as to why it is not. Without the escape, the act of the burglary is not complete. Since, the burglary itself is a wrongful act, Ferdy will have no claim, despite the fact that it was largely Anthony’s drunkenness which contributed to it.
2. Rolls, a fraudster, burnt down his failing shoe factory, of which he was the sole director and shareholder, in order to cash in on the insurance worth Rs. 10 crore. After he set the factory on fire, the fire fighters took almost an hour to reach the spot, despite being less than forty minutes away. The investigators discovered that the fire could have been quelled if the fire fighters were quick to the scene. Rolls claimed the 10 crore from Royce, the insurance company, and damages from the state for the fire department’s delay.
a. Rolls’ claim will be successful since the fire fighters could have quelled the fire had they arrived on time.
b. Rolls’ claim will not be successful since he himself set fire to the factory, which caused him damage.
c. Rolls’ claim will not be successful since if his participation is not proved, the fire was caused by an Act of God, for which insurance companies do not pay.
d. None of the Above.
(b – for the reasons given. Additionally, just like doctors, fire depts. also do not have any liability unless it was due to some gross negligence on their behalf which caused the fire to aggravate. Otherwise not only will it be unjust because such persons are just there to help, but also it will discourage anyone willing to join these professions, given that they will have such serious liabilities looming over them for the slightest of error/failure.)
3. After an evening of heavy drinking the unlicensed and uninsured owner of a motor-cycle (Rudolf) drove the cycle on a public road in a reckless and dangerous manner which Adolf, who was riding pillion, was found to have actively encouraged. There was an accident in which his brother Rudolf, the rider, was killed and he was badly injured. Decide Adolf’s claim for compensatory damages.
a. Adolf can claim, since the bike was unlicensed and uninsured.
b. Adolf can claim, since he did not encourage Rudolf to drive recklessly.
c. Adolf cannot claim, since he knowingly rode pillion.
d. Adolf has no claim, since he actively encouraged Rudolf’s drunken driving.
(d – knowingly riding the bike, would not have been a wrongdoing per se. But actively encouraging drunken driving, resulting in his own injury, is.)
4. Mr. Modi was passing by Mr. Khemka’s house. At that time, Mr. Khemka’s dog ran
outside and bit Mr. Modi’s overcoat. Mr. Modi turned around and shot close the dog, the dog ran away. While the dog was far away from Mr. Modi, Mr. Modi aimed directly for the it and shot the dog dead. Mr. Khemka filed a suit for damages as the dog was of a rare breed and was close to the family members.
a. Mr. Khemka will succeed because Mr. Modi killed the dog, as his right of private defence
has elapsed.
b. Mr. Khemka will not succeed because Mr. Modi is justified in shooting the dog.
c. Mr. Khemka will not succeed because Mr. Modi took the action to protect him as well as many other members of public in future.
d. Mr. Khemka will succeed because he lost his precious dog.
(a – straightforward application of the principle)
5. Heena, suffering from a bout of insanity, attempts to kill Indrani. Indrani in order to save herself hits Heena with an iron rod. Heena dies instantly.
a. Indrani has right of private defence, although Heena is insane.
b. Both Heena and Indrani are guilty of no offence.
c. Indrani has no right of private defence since Heena is insane.
d. Indrani is guilty of inflicting grievous hurt on Heena.
(a – insanity of the offender will not deprive the other person of his/her right to life.)
6. Raul sneaked in into house of Fidel with the motive of theft. Fidel somehow managed to
notice the presence of Raul in his house. He challenged Raul to leave his house immediately. Raul got scared and started to leave. Even then Fidel brought his licensed gun and shot Raul below his waist. Raul claimed damages.
a. Fidel is not liable as Raul was trespasser on his land.
b. Fidel is liable because the force used was more than necessary.
c. Fidel is liable since his right to private defence had elapsed
d. Both b & c)
(d – straightforward application of the principle.)
7. Sagnik was the owner of jewellery shop. One day few burglars came armed with iron rods and tried to rob his shop. One of them, Saurabh, was his old enemy. When Sagnik took out his gun they tried to flee. Sagnik shot Saurabh from the back.
a. Sagnik is not guilty because he acted in self defence.
b. Sagnik is liable for murder.
c. Sagnik is guilty because he had exceeded his right of private defence.
d. None of the above.
(c – straightforward application of the principle.)
8. Mr. Mukund threatens Mr. Krishna that he will kill Mr. Krishna. After saying so, Mr. Mukund goes to his house saying that he would get his axe.
a. Mr. Krishna will have to run away.
b. Mr. Krishna can go to the Police Station and file a complaint.
c. Mr. Krishna can exercise the right of self defence.
d. Mr. Krishna cannot exercise the right of self defence.
(d – here, we are not looking to advice the person. So, ‘a’ cannot be the answer. Secondly, we have to answer according to the 2nd Principle. Since, b, although correct, but comes in the form of an advice, we are left with d, since the threat is not imminent, i.e., about to occur.)
9. Poorvi was living in a farm house with a few family members. One night, a group of
robbers broke open the door of the house and there was scuffle between the intruders and the
residents. Poorvi took out her pistol and fired a shot at one of the intruders. The shot did not
hit the target and the robbers ran out of the house and by that time, the neighbours gathered in
front of the house Poorvi in a fit of anger came out of the house and fired at fleeing robbers
who by that time mingled with the neighbours. The shot injured a neighbour and he filed a
suit against Poorvi.
a) Poorvi is not liable, since his action was in continuation of self-defence ;
b) Poorvi is liable, because he should have realised the possibility of hitting an
innocent bystander.
c) Poorvi is not liable since his act was intended against the robbers.
d) Poorvi is liable since it was an act of vengeance, and there was no immediate threat.
(d – straightforward application of the principle)
10. The robbers, armed with knives and crowbars, broke the access door of a house and entered into it. The owner of the house took out his gun and threatened to shoot them. The robbers ran out of the house and started pelting stones. The owner opened the fire. Having heard the gun shot, the police rushed to the place and announced that the owner must stop firing. The owner, suspecting mischief, continued to fire and a policeman was injured by a shot. The robbers meanwhile fled away. The owner was sued for attacking the public servant on duty.
a. The owner shall be liable for causing harm, in excess of what is necessary for self-defence.
b. The owner shall not be liable for attacking the public servant as such, though he may be held liable otherwise.
c. The owner’s action is justified by the consideration of self-defence.
d. None of the above.
(c – because the owner was under the impression that it was the robbers themselves impersonating as policemen; since they were armed, coming outside to check wouldn’t have been the right thing to do, so he continued with his course of action.)
