5.1 Private Defence (Self-Defence, Defence of Property, Defence of Chastity)
The principle: a person attacked (or his property, or the chastity of himself or those under his protection) may repel the attack with force — no crime is committed by lawful defence. Theclassical foundations: natural right (self-preservation), the law's practical limits (the state cannot be everywhere — vim vi repellere licet, force may be repelled by force), and the wrongdoer's forfeiture (the aggressor cannot claim the law's protection against lawful resistance to his own wrong).
The conditions' checklist (the examination's spine):
1. An unlawful and imminent attack — against self or others (defence of third persons is included), property, or chastity; there must be present danger — the defence does not avenge, it repels (no defence against a completed attack; the "springing" revenge problem);
2. Necessity — force only so far as needed to repel; once the attack ends, the right ends (the time-lag problem: continuing force against a fleeing attacker turns defender into aggressor);
3. Proportionality — the response's gravity calibrated to the interest attacked: deadly force only against threats to life, grievous harm, and the gravest property/qualified situations (arson, night-time housebreaking — the Code's scheme permitting lethal defence in enumerated grave settings); against simple theft, non-deadly restraint only;
4. Not against public servants acting lawfully — no private defence against lawful arrest or official force (the Code's express limit; mistaken-identity of the official — the mistake analysis returns);
5. Not available to the aggressor — he who begins the wrong cannot invoke the right (except withdrawal-and-renewed-attack scenarios).
The three heads of the syllabus: (a) self-defence — of body and life (the paradigm); (b) defence of property — habitation and goods (with the deadly-force limits); (c) defence ofchastity — the South Asian tradition's express head (the Ain lineage to the 2074 Code): the person (or the person under one's protection) subjected to attempted rape/outrage may repel with force proportionate to the danger — deadly force's availability where the assault endangers life or the resistance confronts deadly violence; the head's modern significance: a codified, gender- protective defence clause, to be read with sexual-offence definitions and the Court's rights-era interpretations.
The syllabus prescribes a case for this section; its citation and holding are withheld until verified.
Comparative note: the Anglo-American retreat-vs-stand-your-ground debate (the duty to retreat where safely possible vs. the right to stand); the IPC's graduated clauses (the 2074 Code's lineage); and Balmanjari (below) for Nepal's general-defence jurisprudence.
5.2 Necessity
The principle: conduct that would otherwise be criminal is justified where it was necessary toavoid a greater harm — the choice of evils (the sailors who kill the cabin boy after the shipwreck — R v. Dudley and Stephens — the common law's grim classic, denying necessity for killing an innocent to survive; the travelers who break into an unoccupied cabin in a blizzard — the textbooks' allowed case). Elements: imminent peril; no reasonable legal alternative; the harm avoided genuinely greater than the harm done; immediacy of the choice. Its doctrines: necessity as justification (the act was right) in the lesser-evil form; the medical-necessity debates; the civil- disobedience refusal (political necessity is not legal necessity). Nepal's Code recognizes necessity-type justification (harm-causing acts done to avoid greater imminent harm, within bounds — by principle). Distinguish from duress (below): necessity chooses harm against the world/things or unchosen victims by the actor's own judgment; duress responds to another human's coercion.
5.3 Duress (Compulsion)
The principle: an actor coerced by threats (of death or grave harm) that he cannot reasonably resist commits a wrong but is excused — per vim et metum — the choice was not genuinely his. Elements: a threat of death/serious injury (to the actor or another); immediacy (a gun at the temple — not "or I'll hurt you next month"); no reasonable escape; the actor's submission reasonable; proportion (life vs. minor property: no excuse of serious crime to avoid a slap); and the exclusions: murder victims cannot be selected by coercion (the common law's exclusion of murder from duress — Howe); duress unavailable to one who joined criminal organizations expecting coercion (the gang member's bargain); self-induced duress. Nepal's Code: compulsion provisions excusing acts done under grave threat not otherwise avoidable (by principle); the Ain-era concepts of coerced participation; compare the Code's duress with the constitutional guarantee that no torture or cruel treatment shall be permitted (the coerced confession's exclusion — evidence-law's duress cousin). Duress vs. necessity table (the exam's quick kill): human threat vs. circumstance; excuse vs. justification; resisted vs. chosen; innocent victim's consent absent in both but handled differently.
5.4 Superior Order
The principle and its famous maxim:actus non facit reum nisi mens sit rea is not enough here — the question is whether "I was ordered" excuses. The solutions' history:
1. The absolute liability theory (the Prussian tradition): the order's illegality is no defence — the subordinate is a mere instrument;
2. The absolute obedience theory (Nuremberg's target): orders excuse always — the "following orders" (Befehl ist Befehl) defence;
3. The modern synthesis (Nuremberg, and law ever since): superior orders are nodefence to manifestly unlawful orders — the subordinate must obey lawful orders and must refuse manifestly illegal ones; "the fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation" (the Nuremberg Charter's formula, now the Rome Statute's Article 33: orders no defence for genocide or manifestly unlawful crimes);
4. Nepali law: the military-justice tradition (the Army Act's discipline framework) subject to the manifest-illegality limit; and the constitutional order's supremacy — no order can justify torture, and the Criminal Code's torture prohibition applies to officials who "just followed" (the Panchayat-era and conflict-era accountability debates being the Nepali chapter of the doctrine). The doctrine's home discipline: international criminal law (Unit 1's universal jurisdiction's sibling) — where the individual's conscience is the final checkpoint of state power.