Bench: Mr. Bose, Mr, Vivian, Mr. Fazal Ali, Mr. Saiyid.
Facts:
A communal riot broke out in a town between Sindhi refugees and the local Muslims which lead to some Muslims losing their lives and goods in a shop getting scattered. Alarm spread toanother localitywhere the shops of appellant and his brother (both Muslims) were situated and the people there, including the appellant,started closing their shops. A mobcollected near the appellant's locality and looted his brother's shop and began to beat the doors of hisshop with lathis. The appellant fired two shots from hisgun which caused the death of one Sindhi and injured three other Sindhi’s.
Issue:
The question for determination was whether the appellant acted in his right of private defence?
Application:
Under section 97 of the Indian Penal Code the right extends not only to the defence of one's own body/ or the body of any other personagainst any offence affecting the human body but also to property against certain specified offences, namely theft, robbery, mischief and criminal trespass. However the right under section 97 does have some limitations like
- The right does not arise if there is time to have recourse to the protection of the public authorities,
- It does not extend to the infliction of more harm than is necessary for the purpose of defence.
- The person should be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting.
Holding:
The High Court held the according to the facts Amjad Khan had sufficient reason to afford a right of private defence as he 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 orto his family.
