STATE OF U.P. versus NIYAMAT & ORS.

Citation: [1987] 2 S.C.R. 953 · Decided: 14-04-1987 · Supreme Court of India · Bench: V. KHALID · Disposal: Dismissed

Judgment (excerpt)

STATE OF U.P. 
A 
v. 
NIYAMAT & ORS. 
';o-,;f 
APRIL 14, 1987 
[V. KHALID AND G.L. OZA, JJ.] 
B 
Criminal Procedure Code, 1973: s. 41-Arrest without warrant-
~ 
When unlawful. 
Indian Penal Code, 1860: ss. 97 & 99-Reasonable apprehension 
... ·-r-
of death or grievous hurt-Right of private defence-Whether avail- c 
able-Rescue of persons unlawfully arrested-Use of force-Whether 
permissible. 
"~ 
The respondents, said to be armed with spears pharsas and Iathis, 
were alleged to have assaulted the police party returning after appre· D 
bending a suspect villager, resulting in the death of the informer 1md 
grievous injuries to the constables, and to have secured the rele.ase of 
the suspect. They were also alleged to have snatched the private gun 
and belt of cartridges from the constable. The incident took place at 
night. They were convicted hy the trial court under s. 302 read with s, 
149, and ss. 395 and 147 I.P.C. 
E 
---'{ 
The High Court on appraising the evidence and the FIR came to 
~ 
the conclusion; (i) that the sole object of the respondents in going to the 
place of occurrence was only to rescue the suspect and not to assault or 
murder anyone; (ii) that the arrest of the suspect by the police was abso· 
~ ""' 
lutely unjustified and not legal since no material had been produced 
F 
either to indicate his involvement in a cognizable offence or for causing 
_j' 
reasonable suspicion, therefore, the respondents had a right to get the 
suspect rescued from custody; (iii) that the respondents did not use 
force till one of the constables tried three shots, one after another, 
which was sufficient to cause a reasonable apprehension of either death 
or grievous hurt in the minds of the respondents, therefore they were 
G 
acting in the right of private defence; (iv) that none of the respondents 
made any attempt on the life of the informer till he himself intervened to 
help the constable, and held that as such it could not be said that they 
were members of an unlawful assembly or were committing rioting 
when they used force. In the premises, the Court recorded acquittal of 
the respondents. 
.H 
953 
954 
SUPREME COURT REPORTS 
I 1987] 2 S.C.R. 
A 
In the appeal to this Court it was contended for the State: (I) that 
even if the arrest of the suspect was not legal, in view of s. 99 I.P.C. 
right of private defence was not available to the respondents under s. 97 
I.P.C. and they could have taken recourse to use lawful methods for 
rescuing the suspect rather than resorting to violence; and (2) that there 
was no cause for reasonable apprehension of serious injuries to the 
B 
respondents, for the constable had fired shots in the air just to frighten 
the respondents and since it was moonlit night the respondents could 
have seen the direction in which shots were fired. 
c 
Dismissing the appeal, the Court, 
HELD: Section 99 of the Indian Penal Code is only attracted 
where there is no reasonable apprehension of death or grievous hurt. In 
the instant case, the respondents did not use force unless and until one 
of the constables actually fired shots. Even if it is accepted that it was a 
moonlit night, it could safely be inferred that the light may not be 
sufficient enough so that from a distance the resp~ndents could notice 
D the direction of the barrel of the gun when shots were fired. In such a 
situation, the conclusion reached by the High Court that it was suffi-
cient to cause reasonable apprehension in the minds of the respondents 
of death or grievous injury, and, therefore, they were entitled to right 
of private defence, was justified. [959H; 960E-G l 
E 
If the respondents could not be held to be members of an unlawful 
assembly as their object at best could only be to resce the suspect from 
unlawful custody, then even if the right of private defence is not 
accepted, it is not possible on the basis of the prosecution evidence 
to find out what respondent caused what injury and it will not be possi-
ble to find them guilty for their individual acts. The same will be the 
F 
situation even if it is held that they exceeded the right of private 
defence. [960G-H; 96IA] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 335 of 1978. 
G 
From the judgment and Order dated 13.4.1977 of the Allahabad 
High Court in Criminal Appeal No. 1855 of 1975. 
Dalveer Bhandari, C.P. Mittal and Pramod Swarup, for the 
Appellant/Petitioner. 
' H 
R.K. Garg, S.C. Birla, Mukesh K. Giri, S.C. Patel, Syed Ali 
--r

Excerpt shown. Read the full judgment & AI analysis in Lexace.