Under Section 105 the right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property (i) against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered; (ii) against robbery continues, as long as the offender causes or attempts to cause to any person death, hurt or wrongful restraint or as long as the fear of instant death or instant hurt or instant personal restraint continues; (iii) against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief; and (iv) against house-breaking by night, continues as long as the house trespass which has been begun by such house-breaking continues.
This section is analogous to Section 102, and indicates when the right of defence of property commences and till that period it continues. In case of theft the right of private defence of property is put to an end by the successful retreat of the thief if the thief is running away with the property, he cannot be said to have retreated. It is only when he reaches his final destination that he can be said to have retreated. The question whether or not there was enough time for the injured party to have recourse to the protection of the public authorities is always a question of fact depending on the circumstances of each case.
The recovery which the section contemplates seems to be a recovery either immediate or made before the offender has reached his final retreat. Robbery is theft accompanied by violence. The right of defence against robbery as such only lasts as long as the robbery. While the fear of death, hurt or wrongful restraint, which causes theft to grow into robbery continues, the offender may be killed.
But when he takes to his heels with the booty the robbery is over, and the right of defence reduced to what would have been admissible against a pick pocket. In the case of criminal trespass and mischief the right of private defence remains so long as the offence continues. If the trespasser has left the land, owner cannot pursue him for the purpose of chastisement. If criminal trespass and mischief are attended by violence the right would be enlarged. The right of-private defence against house-breaking continues so long as the house trespass continues. The moment the offender quits the premises the right too ceases. Illustrative Cases: (i) Mir Dad v.
Crown: The appellants followed up tracts purporting to be those of their stolen cattle. They, before receiving the police help for which they had made a provision, proceeded to the complainants’ village and fired gun shots at them. The Court held that the appellant’s right of private defence of their property had been put to an end by the successful retreat of the thieves, and that their alleged re-discovery of the cattle in the complainant’s possession could not revive that right. (ii) Raikisto Dass: One G in excavating a bhal encroached on one C’s land, and committed mischief by cutting the land and throwing earth on it, which was resisted by C’s men, whereupon the mischief ceased, but the men continued to remain assembled probably to prevent even the cutting of bhal.
The Court held that the assembly had no right of private defence after the mischief had ceased and when there was no likelihood of its renewal.