In this blog post, Niharika Mittal discusses affray along with its elements and distinctions.
The word “affray” means a skirmish or fighting between two or more, and there must be a stroke given or offered, or a weapon drawn. An affray is committed is a public offence to the terror of the people. According to Section 159 of the Indian Penal Code, Affray is defined as “When two or more persons by fighting in a public place, disturb the public peace, they are said to commit an affray.”
The punishment for committing affray is imprisonment for up to one month or fine up to one hundred rupees or both (Section 160). This offence necessarily postulates the commission of a definite assault or a breach of the peace. Mere quarrelling or abusing in a place not resulting in the exchange of blows is not enough to draw the attention of Section 160 IPC. A fight is a necessary element to constitute affray. This means both the parties have to be aggressive and participate in the struggle.
AFFRAY UNDER ENGLISH LAW
In English law, if two or more persons fight in a public place to the terror of the sovereign’s subjects, this constitutes an affray and is a misdemeanour at common law. To fight in a private place or at a place where no persons are present except those who aid and abet do not constitute affray, but an assembly for such object is unlawful, and the parties may be convicted of crimes relating to it.
It is an aggravated form of affray violently to disturb the officers of justice in the due execution of their office, by the rescue of a person legally arrested, or the attempt to make such a rescue. The offence is severely punishable when committed in the Queen’s Courts, or even in the palace yard near those courts and it is highly fineable even when made in the presence of an inferior court of justice.
Quarrelsome and threatening words themselves cannot in law create such terror so as to amount to an affray, yet there might be an affray without the presence of actual violence as where persons are themselves armed with dangerous and unusual weapons, in such manner as will naturally cause terror to the people which is an offence at common law.
In the absence of any direct evidence, it is sufficient to prove an affray that any subject of the Queen was put in fear or terror to show that the circumstances were such that reasonable persons might be frightened or intimidated.
The offence is punishable with fine and imprisonment.
MEANING OF AFFRAY
According to Blackstone, “The offence is the fighting of two or more persons in public place to the terror of His Majesty’s subjects for, if the fighting be in private, it is no affray but an assault.” The gist of the offence consists in the terror it causes to the public. The word ‘affray’ is derived from the French word ‘affraier’ which means ‘to terrify’ and so, in a legal sense it is taken for a public offence causing terror to the people. For the conviction to arise under this offence, it is sufficient that an alarm would have been caused to the public or members of the public. It is not necessary that any particular member of the public must give evidence to the effect that he was alarmed. The presence of public at the time of disturbance would be sufficient to show that the members of the public must have been alarmed by reason of the disturbance and there was sufficient breaking of the peace.
INGREDIENTS OF AFFRAY
An affray consists of the following:
- fighting by two or more persons
- the fighting must take place in a public place
- such fighting must also result in disturbance of the public peace
Fighting by two or more persons
The offence of Affray is nevertheless a fight, i.e., a bilateral act, in which two parties participate and it will not amount to an affray when the party who is assaulted submits to the assault without resistance. Fighting necessarily implies a competition of struggle for mastery between two or more persons against one another. When members of one party beat the members of other party and the latter does not retaliate or make an attempt to retaliate but remain passive it can’t be said that there was fighting between the members of one party and the members of the other and the offence of affray can’t be said to have been established[Jodhey v. State (AIR 1952 All. 788 at p. 794)].
“Fight” contemplated under Section 160 IPC, is certainly different from a mere quarrel. The Law Lexicon by P. Ramanatha Aiyar defines “fight” as follows:
“To strike or contend for victory, in the battle or in single combat to attempt to defeat, subdue, or destroy an enemy, either by blows or weapons.”
“Quarrel” means an exchange of angry utterances between two or more persons and not the mere use in an ordinary tone. Though it may need two for a fight or quarrel, the difference between them is obviously apparent.
Fighting in a public place
A place where public go, no matter whether they have a right to go or not, is a public place.
There is a difference between an act done in public and an act done in a public place. In England, some statutes make acts penal which are done in public, others make acts penal which are done in public place, so that in the criminal statute law in England the distinction is, it will be observed, between doing an act in public and doing an act in a public place. The same demarcation is depicted in the Acts of Indian Legislature. The offence here contemplated must be committed in a public place and in the presence of public without whom there can be no breach of the public peace.
Disturbance of the public peace
In order to constitute an affray, there must be not only fighting, but it may cause disturbance of public peace.
CHARACTERISTICS OF AN AFFRAY
- A charge of affray brings in both the sides as accused persons since both the fighting groups have committed the offence.
- It is a bailable offence.
- It is non-compoundable offence.
- The Criminal Procedure Code, 1973 has now made it a cognisable offence.
- It may be tried by any magistrate and is triable summarily.
SOME IMPORTANT CASES
Jagannath Sah [(1937) O.W.N. 37.]
Two brothers were quarrelling and abusing one another on a public road in a town. A huge number of people gathered around them. Even the traffic was jammed but no actual fight broke out between them. It was held that no affray was committed.
Babu Ram and Anr. vs. Emperor [(1930) I.L.R. 53. All.229.]
A person was attacked and overpowered by two other persons in a public place. He could merely defend himself. It was held that they were guilty of the offence because there was fighting in public place which disturbed the public peace.
DISTINCTION BETWEEN AFFRAY AND RIOT
The offence differs from a riot in the following ways:-
- An affray cannot be committed in a private place whereas a riot can be committed in a private place.
- To constitute an affray there must be a presence of two or more persons while for a riot it has to be five or more.
DISTINCTION BETWEEN AFFRAY AND ASSAULT
An affray is distinguishable from assault as:-
- An affray has to be committed in a public place while an assault may take place anywhere.
- The offence is considered to be an offence against public peace whereas assault, against the person or an individual.
The offence of affray is thus a bilateral act in which two or more parties participate to fight against one another which is committed at a public place and this results in the disturbance of public peace. It involves an actual fight between the parties to establish this offence and mere quarrelling would not result in an affray. Section 159 of the IPC defines it and Section 160 IPC imposes punishment for the offence. It has also been distinguished from riot and assault due to its distinction of place where the act was committed, the number of parties and whether the public was affected or not.