# AMJADKHAN v. THE STATE

- **Citation:** [1952] 1 S.C.R. 567
- **Court:** Supreme Court of India
- **Decided:** 1950-09-26
- **Case number:** CRIMINAL APPELLATE JUR1so1cnoN: Criminal Appeal No. 50 of 1951
- **Bench:** SAIYID F AZL Au, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amjadkhan-v-the-state-50
- **Pages:** 6

## Headnote

Indian Penal Code (Act XLV of 1860), ss. 97, 102 and 105Right of private
defence-Reasonable apprehension of death or
grievous hurt.
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 Si~dhis. 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
betw_een 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 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 ~o 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 had 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."
CRIMINAL
APPELLATE
JUR1so1cnoN:
Criminal
Appeal No. 50 of 1951. Appeal by Special Leave from
the Judgment and Order dated the 26th September,
1950, -of the High Court of Judicature of Nagpur
(Hemeon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of 1950 arising out of Judgment
dated .the 2nd August, 1950, of the Court of Sessions
Judge, Jabaipur, in Sessions Trial No. 32 of 1950.
1952
March 20.
195Z
Amiar:I Khan
v.
The State.
Bou /.
568
SUPREME COURT REPORTS
[1952]
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
Con.stable
Bharat Singh,
P. W. 17,
who made the First Information Report, said that
most of the shopkeepers in Zanda Bazar are Sindhis.
He stated that when he was told 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 ruro in evidence that some
Muslims lost their lives.
From this place he went on to Subash Chowk, die
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
tlwee others, also Sindhis.
The map, Ex. D-4, shows that the shops of the
appellant and his brother Za:hid Khan run into each
other aed form two sides .of a rectangle, the appellant's
·house facing north and the brother's house facing
.east. Each shop opens out an to a .road.
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S.C.R.
SUPREME COURT REPORTS
569
It is proved that when the rioting brok

## Text

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S.C.R.
SUPREME COURT REPORTS
567
AMJADKHAN
v.
THE STATE
[ SAIYID F AZL Au and VIVIAN BosE JJ.]
Indian Penal Code (Act XLV of 1860), ss. 97, 102 and 105Right of private
defence-Reasonable apprehension of death or
grievous hurt.
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 Si~dhis. 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
betw_een 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 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 ~o 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 had 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."
CRIMINAL
APPELLATE
JUR1so1cnoN:
Criminal
Appeal No. 50 of 1951. Appeal by Special Leave from
the Judgment and Order dated the 26th September,
1950, -of the High Court of Judicature of Nagpur
(Hemeon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of 1950 arising out of Judgment
dated .the 2nd August, 1950, of the Court of Sessions
Judge, Jabaipur, in Sessions Trial No. 32 of 1950.
1952
March 20.
195Z
Amiar:I Khan
v.
The State.
Bou /.
568
SUPREME COURT REPORTS
[1952]
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
Con.stable
Bharat Singh,
P. W. 17,
who made the First Information Report, said that
most of the shopkeepers in Zanda Bazar are Sindhis.
He stated that when he was told 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 ruro in evidence that some
Muslims lost their lives.
From this place he went on to Subash Chowk, die
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
tlwee others, also Sindhis.
The map, Ex. D-4, shows that the shops of the
appellant and his brother Za:hid Khan run into each
other aed form two sides .of a rectangle, the appellant's
·house facing north and the brother's house facing
.east. Each shop opens out an to a .road.
. t
...
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S.C.R.
SUPREME COURT REPORTS
569
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 appellant's portion of the building through
this hole and took refuge there. The High Court also
holds that the appellant'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 plililic 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
1s
1952
Amiad Khan
v.
The State.
Bose /.
1952
Amjad Kha"
v.
Th• State.
B0t• ].
570
SUPREME COURT REPORTS
[1952]
caused the person exercising the right must be under
reasonable 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 sections 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 appellant'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
commence!!-
"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 bce11
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 appellant had reasonable grounds
for apprehending that either death or grievous hourt
would be caused either to himself or his family. The
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-
"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 reasonable."
And we know that Muslim shops had already been
broken into and looted and Muslims killed in the
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s.C.R.
SUPREME COURT REPORTS
571
l'l.otmg 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 m another part of their judgment also
where they say that the shot was firedJ
"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
~athis and that Musrim 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 woul'd 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 grievo~ 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 h~ fired the shots,, so the looting and the beating
1952
Am jail Kh1111
v.
The State.
Bose f.
1952
Amjad Khan
v.
The State.
Boil /,
1952
Feb. 27.
572
SUPREME COURT REPORTS
[1952]
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
than was necessary. Indeed, the
firing,
acting as
a deterrent, spurred them on
ransacked and looted the place.
more force
far from
and they
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: 0. P. Verma.
Agent for the respondent: P. A. Mehta.
MOHAMMAD YASIN
v.
THE TOWN AREA COMMITTEE,
JALALABAD AND ANOTHER.
[PATANJALI SASTRI C.J., MEHR CHAND
MAHAJAN, MUKHERJEE, DAs and
CHANDRASEKHARA AIYAR JJ. )
Constitution of India. 1950, Arts. 19(l)(g), 32-U. P. Municipalities Act, 1916, ss. 293(1), 298(2) (g)(d)-Municipal byc-lawsBye-law imposing fee for carrying on wholesale trade in vegetables
and fruits within
municipal
area-Validity-Restraint
on fundamental right to carry on trade-Licence and tqx, difference.
There is a difference between a tax like the income-tax and a
licence fee for
carrying on an
occupation,
trade or business.
A
licence fee on a business not only takes away the property of the
licensee but also operates
as a restriction
on
his
fundamental
. '
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