Section 105 IPC: Commencement and Continuance of the Right of Private Defence of Property
Section 105 of the Indian Penal Code, 1860 determined when the right of private defence of property began and how long it continued. The section prescribed different continuation rules for theft, robbery, criminal trespass or mischief, and house-breaking by night.
When Does the Right of Private Defence of Property Begin?
The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
The statutory test was therefore based on reasonable apprehension of danger. A person did not necessarily have to wait until the threatened property offence had been fully completed before the right could arise. At the same time, the apprehension had to be reasonable in the circumstances.
How Long Does the Right Continue?
Section 105 did not prescribe one common termination point for every property offence. Its duration depended on the nature of the offence.
Against Theft
The right continues until the offender has effected retreat with the property, or the assistance of public authorities is obtained, or the property has been recovered.
Against Robbery
The right continues while the offender causes or attempts to cause death, hurt or wrongful restraint, or while fear of instant death, instant hurt or instant personal restraint continues.
Against Criminal Trespass or Mischief
The right continues as long as the offender continues in the commission of criminal trespass or mischief.
Against House-Breaking by Night
The right continues as long as the house-trespass begun by such house-breaking continues.
Section 105 IPC at a Glance
| Situation | When the right continues |
|---|---|
| General commencement | From the commencement of reasonable apprehension of danger to the property. |
| Theft | Until retreat with the property, assistance of public authorities, or recovery of the property, as provided by the section. |
| Robbery | While the specified violence, attempted violence, restraint, or fear of instant death, hurt or personal restraint continues. |
| Criminal trespass or mischief | While the offender continues committing the criminal trespass or mischief. |
| House-breaking by night | While the house-trespass begun by the house-breaking continues. |
Meaning of the Relevant Property Offences
Theft
Under the IPC framework, theft involved dishonestly taking movable property out of another person's possession without that person's consent by moving the property in order to such taking.
Robbery
Robbery was an aggravated form of theft or extortion involving the circumstances of violence, attempted violence, wrongful restraint or fear specified by the IPC. Section 105 accordingly tied the continuation of private defence against robbery to the continuation of the specified danger or fear.
Criminal Trespass
Criminal trespass broadly involved entering into or remaining upon property in another person's possession with the criminal intent specified in the IPC.
Mischief
Mischief broadly concerned destruction of property, or a change in property or its situation, accompanied by the wrongful intention or knowledge required by the IPC and resulting in the specified injury to value, utility or condition.
House-Breaking by Night
For the pre-BNS IPC provision, Section 105 used the expression house-breaking by night. Its continuation rule lasted as long as the house-trespass begun by such house-breaking continued.
Relationship with Sections 97, 99, 103 and 104 IPC
Section 97 IPC recognized the right of private defence of property against specified offences. Section 99 IPC imposed restrictions on that right, including the principle that private defence does not extend to inflicting more harm than necessary for defence.
Section 103 IPC specified the exceptional property offences in which the right could extend to causing death, while Section 104 IPC dealt with theft, mischief or criminal trespass outside Section 103 and limited the right to harm other than death. Section 105 addressed the separate question of when the property-defence right begins and how long it lasts.
Why the Duration of the Right Matters
Private defence is a protective right, not an unlimited authority to retaliate after the statutory danger has ended. Section 105 therefore linked the duration of the right to continuing danger or to specific events identified for each property offence. Whether the right existed at the particular moment when force was used depended on the facts and the applicable continuation rule.