Section 98 IPC: Right of Private Defence Against Act of Person of Unsound Mind

Section 98 of the Indian Penal Code, 1860 preserves the right of private defence even where the person creating the danger may not be criminally liable because of youth, want of maturity of understanding, unsoundness of mind, intoxication, or misconception.

Applicable legal position: This article explains Section 98 IPC and the law applicable before the Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024. It should be read with Sections 96 to 106 IPC, especially the restrictions in Section 99.

Text of Section 98 IPC

Right of private defence against the act of a person of unsound mind, etc.

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Meaning and Scope of Section 98 IPC

The provision focuses on the danger created by the act rather than solely on the criminal responsibility of the person doing it. If an act would ordinarily amount to an offence but the actor is exempt from criminal liability for one of the reasons stated in Section 98, the person facing that act does not lose the corresponding right of private defence.

Youth: The actor's age may prevent the act from attracting ordinary criminal responsibility under the IPC.
Want of maturity of understanding: The provision recognizes that lack of sufficient maturity may affect criminal responsibility.
Unsoundness of mind: An actor may be exempt from criminal responsibility because of the applicable IPC rule concerning unsoundness of mind, but the threatened person may still defend against the act.
Intoxication: Where intoxication affects the actor's criminal responsibility in circumstances recognized by law, Section 98 preserves the defender's right against the dangerous act.
Misconception: Even where the actor acts under a legally relevant misconception, the person subjected to the act retains the same right of private defence that would exist if the act were an offence.

Illustrations to Section 98

Illustration (a): Z, under the influence of madness, attempts to kill A. Z is guilty of no offence. A nevertheless has the same right of private defence that A would have if Z were sane.

Illustration (b): A enters by night a house which A is legally entitled to enter. Z, acting in good faith but mistakenly believing A to be a house-breaker, attacks A. Although Z commits no offence because of the misconception described in the illustration, A has the same right of private defence against Z as if Z were not acting under that misconception.

How Section 98 Works with Other Private Defence Provisions

Section 98 does not create an unlimited right to cause harm. Section 96 IPC states the basic protection for acts done in private defence, while Section 97 IPC identifies the right to defend the body and property. Section 99 IPC imposes important restrictions, including that the right does not extend to inflicting more harm than is necessary for defence.

The extent and duration of the right depend on the circumstances and the other provisions governing private defence. Sections 100 and 101 address the extent of the right concerning the body, while Section 102 addresses its commencement and continuance. Sections 103 to 105 contain corresponding rules concerning property.

Key Principle

The essential principle of Section 98 IPC is that a person's right to protect himself, another person, or property is not defeated merely because the person creating the threat lacks criminal liability for a reason specifically recognized by Section 98. The exercise of that right, however, remains governed by the statutory restrictions applicable to private defence.

Related IPC Sections

For the complete statutory framework, read Section 96, Section 97, Section 99, Section 100, Section 101, Section 102, Section 103, Section 104 and Section 105 IPC.