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.

Pre-BNS legal position: This article explains Section 105 IPC under the law applicable immediately before the Bharatiya Nyaya Sanhita, 2023 came into force. It is intended for understanding the earlier IPC framework and matters governed by that law.

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

SituationWhen the right continues
General commencementFrom the commencement of reasonable apprehension of danger to the property.
TheftUntil retreat with the property, assistance of public authorities, or recovery of the property, as provided by the section.
RobberyWhile the specified violence, attempted violence, restraint, or fear of instant death, hurt or personal restraint continues.
Criminal trespass or mischiefWhile the offender continues committing the criminal trespass or mischief.
House-breaking by nightWhile 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.

Summary: Section 105 IPC begins with a general rule based on reasonable apprehension of danger to property and then fixes distinct end-points for theft, robbery, criminal trespass or mischief, and house-breaking by night. It should be read together with Sections 97, 99, 103 and 104 IPC when determining the existence and permissible extent of private defence of property.

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