Amjad Khan vs The State

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 50 of 1951

Decision Date: 20 March, 1952

Coram: Vivian Bose, Saiyid Fazal Ali

In this matter the Supreme Court of India rendered a judgment on 20 March 1952. The case was styled Amjad Khan versus The State. The opinion was written by Justice Vivian Bose, who sat on the bench together with Justice Saiyid Fazal Ali. The petitioner was Amjad Khan and the respondent was the State. The decision is reported in the official law reports as 1952 AIR 165 and 1952 SCR 567, and it has subsequently been cited in several later authorities. The legal issue that the Court examined concerned the right of private defence under sections 97, 102 and 105 of the Indian Penal Code (Act XLV of 1860), which deal with a reasonable apprehension of death or grievous injury. The factual background, as summarised in the headnote, described a communal disturbance that erupted in a town between a group of Sindhi refugees and the local Muslim population. The unrest began in an area where the majority of shopkeepers were Sindhis; in the course of the disturbance the merchandise in Muslim-owned shops was thrown about and a number of Muslims lost their lives. The panic spread to a neighbouring locality where the petitioner and his brother, both Muslims, owned shops. Residents of that area, including the petitioner, shut their shops and the brother’s family sought refuge in the petitioner’s portion of the same building by passing through an opening in the wall that divided the two premises. A mob assembled in that area, advanced on the petitioner’s locality, looted the brother’s shop and battered the shop doors with lathis. In response the petitioner discharged his firearm twice, causing the death of one Sindhi individual and injuring three other Sindhis. The central question for the Court was whether the petitioner’s use of lethal force fell within the protection afforded by the right of private defence. The Court held that the circumstances gave the petitioner a lawful right of private defence under the Penal Code, finding that the situation left him with no opportunity to seek police assistance and that he had reasonable grounds to fear death or grievous hurt to himself or his family. The Court emphasized that such determinations cannot be made by applying an excessively precise or “golden” scale of measurement.

The appeal was filed in the criminal appellate jurisdiction as Criminal Appeal No. 50 of 1951, seeking special leave from a judgment and order dated 26 September 1950 issued by the High Court of Judicature at Nagpur, where the Acting Chief Justice Herneon and Justice Hidayat Ullah presided over Criminal Appeal No. 251 of 1950. That appeal arose from a judgment dated 2 August 1950 of the Sessions Judge at Jabalpur in Sessions Trial No. 32 of 1950. Counsel appearing for the appellant comprised S.P. Sinha, M.Y. Sharif, Nuruddin Ahmad and Shaukat Hussain, while the respondent was represented by counsel Gopal Singh. The judgment was delivered by Justice Bose, who identified the principal issue as whether a right of private defence existed in the circumstances presented. He noted that the majority of the factual matrix was not contested, reiterating that a communal riot had broken out, thereby setting the stage for the Court’s analysis of the applicability of sections 97, 102 and 105 of the Indian Penal Code to the petitioner’s actions.

In this case, a communal disturbance erupted on 5 March 1950 in Katni between Sindhi refugees residing in the town and the local Muslim population. The unrest began in the area known as Zanda Bazar or Zanda Chowk. Police Constable Bharat Singh, identified as P W 17, recorded the First Information Report. He testified that most of the shopkeepers in Zanda Bazar were Sindhi. He recounted that when he learned of the trouble he proceeded to the location and observed that merchandise in the Muslim shops there was scattered. The evidence also showed that some Muslims lost their lives during the incident. From Zanda Bazar the constable moved on to Subash Chowk, the locality where the appellant’s shop was situated, which lies to the west of Zanda Bazar. He reported that on arriving at Subash Chowk he saw a “crowd” rather than a “mob”. He admitted that his First Information Report stated that a gun was discharged a minute after he reached the spot and that this statement was true. It was not contested that the appellant fired that shot, and also a second shot, which caused the death of one Sindhi man and injured three other Sindhis. The map marked as Exhibit D-4 demonstrates that the appellant’s shop and the shop of his brother Zahid Khan are adjacent, forming two sides of a rectangle, the appellant’s premises facing north and the brother’s facing east, each opening onto a road. It was established that when the rioting broke out in Zanda Chowk, the alarm spread to the appellant’s neighbourhood and the residents, including the appellant, began to close their shops. The appellant asserted that a mob approached his neighbourhood, broke into the eastern portion of the building where Zahid’s shop was located, and looted it. The High Court held that this intrusion was proved and occurred before the appellant’s firing. A hole in the wall between the two sections of the building was found, and the High Court concluded that Zahid’s family entered the appellant’s portion through this opening and sought refuge there. The High Court also accepted that the appellant’s mother told him that the crowd had burst into his shop and was looting it, although the learned judges observed that this statement was not entirely accurate because the crowd only struck the door of the appellant’s shop with lathis as they passed, without actually breaking in. Nonetheless, the judges accepted the fact that the crowd was beating the shop doors with lathis. In the court’s view, the facts established by the High Court were sufficient to give rise to a right of private defence under section 97 of the indian Penal Code.

The right of private defence, as defined in the Indian Penal Code, extends not only to protecting one’s own body against any offence that harms the human body but also to protecting the body of any other person. It further includes the right to safeguard property, whether that property belongs to the person invoking the defence or to another individual, against specific offences such as theft, robbery, mischief and criminal trespass. The statutes that follow set out the limitations and the precise scope of this right. Firstly, the right does not arise when there is sufficient time to obtain protection from public authorities. Secondly, the right does not permit the use of force that exceeds what is necessary for the purpose of defence. A further limitation is that, where death is caused, the person exercising the right must have been under a reasonable apprehension of death or of grievous hurt to himself or to those he is protecting; similarly, for protection of property, the danger must be of the type specified in section 103. The broader scope of the right is explained in sections 102 and 105 of the Indian Penal Code. Neither the learned High Court judges nor the Sessions Judge examined these provisions in detail. Both courts seemed to think that actual looting of the appellant’s shop had to occur before the right of private defence could arise, an interpretation that the Court finds to be incorrect. Section 102 states that 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.” Applying this provision, the Court observes that the appellant had no opportunity to seek assistance from the authorities because the mob had already broken into one part of the building and was striking the doors of the other part. It is also clear that the appellant had reasonable grounds to fear that death or grievous hurt could be inflicted upon himself or his family. The learned Sessions Judge notably highlighted the tragic consequences of communal frenzy in India, and especially in Katni, referring to the indiscriminate looting of Muslim shops in that town. The High Court similarly observed that, given the prevailing circumstances and the conflict between refugees and local Muslims, it could not be said that there was no danger to the appellant’s life or, at the very least, to the possibility of grievous hurt if the mob were to enter his shop, and that such apprehension would unquestionably be reasonable. Moreover, it is established that Muslim shops had already been broken into, looted and that Muslims had been killed in the rioting at Zanda Chowk preceding these events. In the Court’s opinion, the High Court erred in holding that the appellant had to wait until the mob actually entered his shop before the right of private defence could arise.

In the judgment, the Court observed that the mob had entered a portion of the appellant’s house and carried out looting. The Court pointed out that the same judgment had previously emphasized that the shot was fired “when there was no looting at the shop and thus no right of private defence.” The Court held that it was sufficient that the mob had actually broken into another part of the house, that the woman and children of the appellant’s family had fled to him out of terror for their lives, and that the mob was striking at his doors with lathis while Muslim shops in the neighboring locality had already been looted and Muslims killed. Because it was impossible for the appellant to know whether his shop would suffer the same fate if he waited, the Court found that it was reasonable for him to apprehend death or grievous hurt to himself and his family once the mob broke in. Under such apprehension, the Court said, he was entitled to act in private defence of his person and would have been bound to protect his family. The threat of forced entry was implicit in the mob’s conduct, and with that threat came the danger of killing or causing grievous hurt to the occupants; the High Court itself had held that the appellant’s shop was menaced. Consequently, the circumstances were ample to give the appellant a right of private defence of the body, even to the extent of causing death. The Court cautioned that such matters should not be weighed on overly precise or “golden” scales. Turning to the question of whether the appellant used more force than necessary, the Court again rejected the idea of applying “golden scales.” It concluded that the appellant was entitled to cause death and that he did not cause the death of more than one person. He fired only two shots and, as the learned High Court had observed, he obviously aimed low. The High Court had found that the mob had moved up to the appellant’s locality when the shots were fired, indicating that the looting and beating at the doors were not isolated acts of a few scattered individuals but the actions of a coordinated mob. 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.” The Court therefore held that the appellant had not used more force than necessary. In fact, the firing, rather than acting as a deterrent, seemed to have provoked the mob, which then ransacked and looted the place. The Court confined its analysis to the right of private defence of the person, noting that the question of defence of property was intertwined with it. Accordingly, the Court allowed the appeal, set aside the convictions and sentences, and ordered the release of the appellant. The appellant’s representative and the respondent’s representative were mentioned in the record.