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Originally Posted by anantpoddar I may not be of much help but I have a query in general to BHPians and folks with legal experience might be able to answer this better:
Is it OK to use a pepper spray in such situations in India? If so, then at what point?
1. Aggressive verbal confrontation: Definitely unwarranted I suppose?
2. Someone tried to forcibly open the vehicle door shows intent to harm?
3. Verbally threatened to break the window glass, damage other areas of the vehicle
4. Threatened with a physical object (stone, rod, etc)
5. Try to incapacitate your movement (e.g.: reaching out to deflate or slash tyres / damage windshield)
6. Two or more people surround your car, blocking your way, aggressively banging the vehicle with hands, abusive, threatening to cause physical injury, forcibly trying to open the door
Situation no. 6 is a special one: what if you try to get away from such a situation and end up banging one of those guys. I'm asking this because I've been in this situation and was made to part with a significant amount of money. Does the presence of a female in the vehicle changes things for us, legally?
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Let me try to answer this. Although, before we begin, I must state that I encourage every reader to try to do their own research; do not take any decisions based on a post made by a stranger online (i.e. me).
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Originally Posted by anantpoddar 1. Aggressive verbal confrontation: Definitely unwarranted I suppose? |
You're absolutely right. Unwarranted.
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Originally Posted by anantpoddar 2. Someone tried to forcibly open the vehicle door shows intent to harm?
3. Verbally threatened to break the window glass, damage other areas of the vehicle
4. Threatened with a physical object (stone, rod, etc) |
Possibly.
Legally, as under the general exceptions of the Indian Penal Code (Chapter IV), the principle of self defence is based on 'reasonable force' - in other words, you are supposed to apply force (in this case, pepper spray) only when and only to the extent that it is necessary to defend yourself. To give some clear-cut case, it would be wrong to shoot a person with a gun in any of these cases, but it might be justifiable to slap/punch them. The main thing is that whatever you're doing should prevent you from an imminent attack in a manner that is not excessive. To sum-up:
(i) imminent attack (and not just a verbal threat -- rather, an actual reason for you to believe you'll be hurt).
(ii) not excessive (proportionate force)
(iii) to defend yourself (the force you use (pepper spray) needs to be solely to defend yourself - not to attack; not to avenge after the other person has stopped or anything like that).
Let us also have a look at the relevant provisions (all Indian Penal Code,
PDF here):
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97. Right of private defence of the body and of property. -- Every person has a right, subject to the restrictions contained in section 99, to defend
First.--His own body, and the body of any other person, against any offence affecting the human body;
Secondly.--The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the defintion of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
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99. Acts against which there is no right of private defence.--
(...)*
There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.
Extent to which the right may be exercised.
Extent to which the right may be exercised.--The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. |
*Removed some part relating to public servants to avoid unnecessary confusion. Google 'Section 99 IPC' if you want the full text.
Then Section 100 tells you when you can cause death as self defence (to prevent death, rape, kidnapping, robbery & wrongful confinement). Section 101 tells you you can cause such harm as necessary but cannot cause death.
Also to keep in mind: your right to self defence ends as soon as the threat is over. So if the person threatened you, punched your window etc., but then has moved back, it is unlawful for you to attack him now. (Section 102)
To the best of my knowledge, pepper spray does not cause death (though I do not know much about it, and have never used it myself). So use of pepper spray in these situations is lawful, provided you are under a genuine threat.
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Originally Posted by anantpoddar 5. Try to incapacitate your movement (e.g.: reaching out to deflate or slash tyres / damage windshield)
6. Two or more people surround your car, blocking your way, aggressively banging the vehicle with hands, abusive, threatening to cause physical injury, forcibly trying to open the door |
Definitely allowed to use pepper spray. It is legitimate self defence (assuming there are no cops present, and you have no other way to protect yourself).
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Originally Posted by anantpoddar Situation no. 6 is a special one: what if you try to get away from such a situation and end up banging one of those guys. |
If the situation is such that you're allowed to use self defence (based on discussion above), this is also lawful.
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Originally Posted by anantpoddar Does the presence of a female in the vehicle changes things for us, legally? |
If the attacked has made sexually coloured remarks about the woman, attempted any harassment, etc., then a counter-FIR could be filed. Practically speaking, you have a stronger case then. But only if such an incident has happened, not simply by having a female present.
Oh, also, you should not be the one who has started the fight. You cannot instigate and claim self defence.
This is just a brief discussion, and by no means an elaboration of the complete situation. I would encourage you to read Sections 96 to 106 of IPC (Google, or use the indiacode.nic.in PDF link above) for yourself.
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With all that aside, however, my recommendation would still be to avoid any confrontation and escalation at all costs. Self defence is legal, yes, but this line of thought presupposes that you would be going to the court. I'm sure most of the Team BHP members do not have the time or patience to undergo the unfortunate Kafkaesque harassment that is the Indian criminal justice system. Keep in mind that if you cause harm to someone, and they report it to the police, the police are duty-bound to register an FIR and proceed. They are not supposed to evaluate your explanations and defences (though they may take it into account for the purposes of investigation). Any such determination has to be by the court. And that will take years.
Hope this helps!