Amjad Khan vs The State on 20 March, 1952

Supreme Court of India

Vs.

RESPONDENT:
THE STATE

DATE OF JUDGMENT:
20/03/1952

BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID

CITATION:
1952 AIR 165 1952 SCR 567
CITATOR INFO :
R 1957 SC1674 (8)
F 1960 SC 67 (7)
D 1990 SC1459 (36)

ACT:
Indian penal Code (Act XLV of 1860), ss. 97, 102 and 105
Right of private defence--Reasonable apprehension of death
or grievous hurt.

HEADNOTE:
A communal riot broke out in a town between some Sindhi
refugees and the local Muslims. The trouble started in a
locality where most of the shopkeepers were Sindhis. The
goods in the Muslim shops there were scattered and some
Muslims lost their lives. Alarm spread to another locality
where the shops of appellant and his brother (both Muslims)
were situated and the people there, including the appellant,
started closing their shops. The family of the appellant's
brother had taken shelter in the appellant's portion of the
building through a hole in the wall between the two portions
of the building in which the two shops were situated. A mob
collected there and approached the appellant's locality and
looted his brother's shop and began to beat the doors of his
shop with lathis. The appellant fired two shots from his

Indian Kanoon - [Link] 1

gun which caused the death of one Sindhi and injured three
other Sindhis. The question for determination was whether
the appellant acted in his right of private defence:
Held, that the facts of the case afforded a right of
private defence to the appellant under the provisions of the
Indian Penal Code. The circumstances in which he was placed
were amply sufficient to give him a right of private defence
of the body even to the extent of causing death as the
appellant had no time to have recourse to the authorities
and has reasonable grounds for apprehending that either
death or grievous hurt would be caused either to himself or
to his family. These things could not be weighed in too
fine a set of scales or "in golden scales."

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 50 of 1951. Appeal by SpeciaI Leave
from the Judgment and Order dated the 26th September, 1950, of the High Court of Judicature of
Nagpur (Herneon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of 1950 arising out
of Judg- ment dated the 2nd August, 1950, of the Court of Sessions Judge, Jabalpur, in Sessions
Trial No. 32 of 1950.

S.P. Sinha and M.Y. Sharif, Nuruddin Ahmad and (Shaukat Hussain, with them) for the appellant.

Gopal Singh for the respondent.

1952. March 20. The Judgment of the court was delivered by BOSE J.--The main question in this
case is whether there is a right of private defence. Most of the facts are not in dispute.

A communal' riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees
resident in the town and the local Muslims. The trouble started in the locality known as Zanda Bazar
or Zanda Chowk. Police Constable Bharat Singh, P.W. 17, who made the First Information Re- port,
said that most of the shopkeepers in Zanda Bazar are Sindhis. He stated that when he was to1d that
trouble had broken out there he proceeded to the spot and found that the goods in the Muslim shops
in that locality were scattered. It is also in evidence that some Muslims lost their lives. From this
place he went on to Subash Chowk, the locality in which the appellant's shop is situate. It lies to the
West of Zanda Bazar. He states that when he got there he found a "crowd" there but not a "mob". He
admitted that he had said in the First Information Report that a gun was fired a minute after he had
reached the spot and he said that what he had stated in the First Information Report was true. It is
not disputed that this shot was fired by the appellant, as also a second shot, and that that caused the
death of one man (a Sindhi) and injured three others, also Sindhis.

The map, Ex. D-4, shows that the shops of the appellant and his brother Zahid Khan run into each
other and form two sides of a rectangle, the appellant's house facing north and the brother's house
facing east. Each shop opens out on to a road.

Indian Kanoon - [Link] 2

It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant's
locality and the people there, including the appellant, started closing their shops.

The appellant's version is that the mob approached his locality and broke into the portion of the
building facing east in which his brother's shop is situate and looted it. The High Court holds that
this is proved and holds further that this preceded the firing by the appellant. There is a hole in the
wall between the two portions of the building in which these two shops are situate and the High
Court holds that Zahid's family got into the appel- lant's portion of the building through this hole
and took refuge there. The High Court also holds that the appel- lant's mother then told the
appellant that the crowd had burst into his (appellant's) shop and was looting it. The learned Judges
state that what he said was not quite true because all that the crowd did was to beat the door of the
appellant's shop with lathis as they were passing but had not broken into the shop. But they accept
the fact that the crowd was beating the doors of the appellant's shop with their lathis.

In our opinion, the facts found by the High Court are sufficient to afford a right of private defence.
Under section 97 of the indian Penal Code the right extends not only to the defence of one's own
body against any offence affecting the human body but also to defending the body of any other
person. The right also embraces the protection of property, whether one's own or another person's,
against certain specified offences, namely theft, robbery, mischief and criminal trespass. The
limitations on this right and its scope are set out in the sections which follow. For one thing, the
right does not arise if there is time to have recourse to the protection of the public authorities, and
for another, it does not extend to the infliction of more harm than is necessary for the purpose of
defence. Another limitation is that when death is caused the person exercising the right must be
under reason- able apprehension of death, or grievous hurt, to himself or to those whom he is
protecting; and in the case of property, the danger to it must be of the kinds specified in section

103. The scope of the right is further explained in sec- tions 102 and 105 of the Indian Penal Code.
Neither the learned High Court Judges nor the Sessions Judge has analysed these provisions. Both
Courts appear to be under the impression that actual looting of the appel- lant's shop was necessary
before the right could arise. In that they are wrong. Under section 102 the right of private defence of
the body commences--

"As soon as a reasonable apprehension of the danger to the body arises from an attempt or threat to
commit the offence though the offence may not have been committed."

Examining the provisions we have set out above, it is evident that the appellant had no time to have
recourse to the authorities. The mob or crowd had already broken into one part of the building and
was actually beating on the doors of the other part. It is also evident that the appel- lant had
reasonable grounds for apprehending that either death or grievous hurt would be caused either to
himself or his family learned Sessions Judge has eloquently drawn attention to the lamentable
consequences of communal frenzy in India and in Katni in particular, and he refers to the
indiscriminate looting of Muslim shops in that town. So also the High Court holds that-

Indian Kanoon - [Link] 3

" Looking to the circumstances which had existed in the country before and the fact that the trouble
was between the refugees and the local Muslims it cannot be said that there would be no danger to
the life of the appellant or at least of grievous hurt if the mob had entered his shop and he prevented
it. The apprehension would undoubtedly be reason- able."

And we know that Muslim shops had already been broken into and looted and Muslims killed in the
rioting at Zanda Chowk which preceded this, in our opinion, the High Court was wrong in thinking
that the appellant had to wait until the mob actually broke into his shop and entered it. They have
emphasised this in another part of their judgment also where they say that the shot was fired- "
when there was no looting at the shop and thus no right of private defence."

It was enough that the mob had actually broken into another part of the house and looted it, that the
woman and children of his family fled to the appellant for protection in terror of their lives and that
the mob was actually beating at his own doors with their lathis and that Muslim shops had already
been looted and Muslims killed in the adjoining locality. It was impossible for him to know whether
his shop would or would not suffer the same fate if he waited, and on the findings it was reasonable
for him to apprehend death or grievous hurt to himself and his family once they broke in, for he
would then have had the right to protest and indeed would have been bound to do what he could to
protect his family. The threat to break in was implicit in the conduct of the mob and with it the
threat to kill or cause grievous hurt to the inmates; indeed the High Court Judges themselves hold
that his own shop was menaced. The circumstances in which he was placed were amply sufficient to
give him a right of private defence of the body even to the extent of causing death. These things
cannot be weighed in too fine a set of scales or, as some learned Judges have expressed it, in golden
scales.

We have next to see whether the appellant used more force than was necessary, and here also we
cannot use golden scales. He was entitled to cause death and he did not kill more than one man. He
fired only two shots and, as the learned High Court Judges observe, he obviously aimed low. The
High Court holds the mob had moved up to his locality When he fired the shots, so the looting and
the beating on the doors were not the isolated acts of a few scattered individuals. It was the mob that
was doing it and in the High Court's words, "The very fact that in the town of Katni two shots should
have struck four Sindhis and none else shows that the rival community was on the move in that
area."

In our opinion, the appellant did not use more force than was necessary. Indeed, the firing, far from
acting as a deterrent, spurred them on and they ransacked and looted the place.

We have confined our attention to the right of private defence of the person though in this case the
question about the defence of property happens to be bound up with it. The appeal is allowed. The
convictions and sentences are set aside and the appellant will be released. Agent for the appellant:
O.P. Verma.

Agent for the respondent: P.A. Mehta.

Indian Kanoon - [Link] 4