This article is written by Akash R. Goswami of Faculty of Law, Aligarh Muslim University. In this article, he has discussed the offence of Affray in regards to the Indian Penal Code and Common law and how Affray is different from Assault and Riot. 

Introduction

People lived in a society with peaceful and amicable manner. But on the contrary, there are some disturbing elements in the society, who whether unknowingly or sometimes intentionally create a sense of hatred and destroy the tranquillity of the society.

People start fighting in a public place and wreck the peace, which ultimately affects people. This conduct is known as the offence of AFFRAY. In the view to Blackstone, “The offence is to commence the fight between two or more persons in a public place to formed terror of His Majesty’s subjects, the turning point is if the fight is in private, it is not the offence of affray but an assault.” The upshot of the offence is coupled with fear, it causes to the public. 

The word ‘affray’ originated from the French word ‘affraier’ signifies ‘to terrify’ and so, in a legal sense it is considered as a public offence causing terror to the people. For the conviction to put under this offence, it is enough that an alarm of fear 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 the public at the time of committing this offence could be enough to show that the members of the public must have been cautious about their life by reason of the perturbation and there was sufficient evidence to show the disturbance of the peace. it is a public order offence and type of disorderly conduct which is considered as breach of peace. Affray is an offence that possessed unlawful fighting or a display of force by at least one person against one or more people. It is also the threat of violence, which is more physical rather than just verbal and a common-law offence which is triable by a Judge or Jury. Also, it can be committed in private places as well as public areas.

To know more about the Affray under English Law and under IPC in brief, please refer to the video below:

Affray meaning

The word “affray” means a tussle or fighting between two or more persons, and there must be a stroke hit or offered, or a weapon drawn. An affray is committed in a public place and strives the terror in the mind of the people. Section 159 of the Indian Penal Code provides that ‘Affray’ is defined as “When two or more persons by way of a brawl in a public place, disturb the public peace, they are said to commit an offence of affray.”

The punishment for committing the offence of affray is imprisonment for a term prescribed or may extend to one or fine upto one hundred rupees and shall be both simultaneously provide in Section 160 of the IPC. This offence necessarily postulates the commencement of a definite assault or a breach of the peace. Mere quarrelling or abusing in a public place can not be considered as an exchange of blows moreover, this will not be enough to draw the attention of Section 160 IPC because a fight is a necessary element to possessed affray. This impliedly means both the parties have to be in a state of aggressiveness and should actively participate in the struggle.

Affray under English Law

In English law provides that, if two or more persons scuffle in a public place to form the terror of the sovereign’s subjects, this will be considered as committing an offence of affray and is a misdemeanour or felony in common law. To warfare in a private place or at a place where no persons are present except those who abet and aid, does not constitute affray. But an assembly for such object is surely unlawful, and the parties may be convicted for an offence relating to affray. 

It is an aggravated form of affray to violently disturb and create obstruction for the officers of justice in the due execution of their duties, by the way, rescuing the person legally arrested, or the attempt to make such a rescue. Committing that offence is severely punishable in the Queen’s Courts, or even in the palace yard which is near to those courts and it is highly blameworthy even when it committed in the presence of a lower court of justice. Quarrelsome, abusive and threatening words themselves cannot, in law, create such terror so as to constitute an offence of affray, still there might be an offence of affray without the presence of violence shown, as where the persons are themselves armed with dangerous and menacing weapons, in such a manner it will develop naturally a cause terror in the minds of people which is an offence in the common law. In the absence of any direct evidence or proof, it is enough to prove an offence of affray that any subject of the Queen was in fear of intimidation or terror to show that the situation were such that reasonable persons might be frightened or subdue. The offence is punishable with fine which may extend to one hundred rupees or imprisonment and shall both.

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Affray under Indian Penal Code

Section 159

Affray—When two or more persons, by scuffling in a public place, disturb the public peace, they are said to “commit an offence of affray”. The offence of affray is only committed when there are two or more persons indulged in fighting, not merely verbal, and the same conduct disturbed the public peace.

Essential ingredients of Affray

An offence of affray can be postulated if it possessed the following:

  • Indulgence in fighting by two or more persons.
  • the fight must take place in a public place.
  • such fighting must also result in the disturbance of the public peace and atmosphere.

Fighting by two or more persons

The offence of Affray is notwithstanding a fight, i.e., a bilateral act, in which two parties actively participate and it will not amount to an affray when the party who is assaulted submits to the assault without opposing it. Fighting necessarily implies a sense of competition and struggle for the mastery between two or more persons against one another. When the members of one party beat the members of the other party and the latter does not retaliate/strive back or make no alternative to retaliate but remain passive, so it can’t be concluded that there was the scene of fighting between the members of one party and the members of the other. Moreover, the offence of affray can’t be said to have been established in that case. This observation is propounded in the case of Jodhey And Ors. vs State Through Ram Sahai [1].

“Fight” behold under Section 160 IPC, is certainly different from a mere quarrel. Many qualified Jurist and Judges of the High Court and Supreme Court of India define “fight” as follows:

“To strike or struggle to surmount for victory in the battle or in single combat to attempt to defeat the opposition, subdue, or destroy an enemy, either by blows or weapons.”

“Quarrel” means that there should be a transposition of anger through utterances between two or more persons and not only the use of 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, it is irrelevant whether they have a right to go or not, is a public place. There is a water-tight difference between an act commence in public and an act done in a public place. In England, some provisions make acts penal which are done in public, other statutes penalize acts which are done in a public place, so that in the criminal statute law in England the distinction is, it will be based on observation, between conducting an act in public and doing an act in a public place. The same demarcation is depicted in the Acts of Indian Legislature and provision. The offence, here, ponder must be committed in a public place and in the presence of the public, when there is no individual is present than there can be no breach of the public peace.

Disturbance in the public peace

In order to possess an offence of affray, there must be not only fighting between one or more than one party but also it may cause disturbance to the public peace. As the offence protect the public in a public place, so in order to put someone under this offence, disturbance in public peace must be destroyed.

Difference between affray and assault

An affray is distinguishable from assault following points states that:-

  • An affray must be committed in a public place while an assault may take place anywhere generally in private place. Someone can attack over another anywhere. It may be in their house also but for affray, it must take place in where presence of public engaged.
  • The wrong is considered to be an offence against public peace or public at large whereas assault, against the person or an individual.

Difference between affray and riot 

The offence of affray differs from riot in the following ways:-

  • One of the fundamental differences is that affray cannot be commenced in a private place whereas a riot can be committed in a private place.
  • To commit an offence of affray there shall be a presence of two or more persons required while for a riot it is mandatory to have five or more than five people to enhance the rioting.

Defences to Affray

A person may avoid the charge of affray by demonstrating that they were acting in self-defence in order to protect themselves and their property. A defence may also be claimed on the basis that the behaviour or conduct did not affect any witness to be alarmed or in fear of loss of their own safety. A defence might also prevail when the accused can show that he was not indulged in the affray, i.e. they did not take part in a fight, or make any threats to another person.

Other defences may also pertain depending on the jurisdiction. In New South Wales, for example, it may be possible to claim a defence based on ‘necessity’ or ‘compulsion’, i.e. for that time it is an utmost thing to do and their involvement in the affray was the result of another consideration, such as the protection of children.

Punishment for committing affray

Whoever commits an offence of af­fray, shall be punished with imprisonment of either description for a term which may extend to one month, or liable to pay a fine which may be extended to one hundred rupees, or with both simultaneously.

Characteristics of an Affray

A charge of affray can be put to both sides as accused persons since both the fighting groups have deemed to commit the offence.

  • The Criminal Procedure Code, 1973 has now made it a cognisable offence.
  • It may be tried by any magistrate and by the jury.
  • It is a non-compoundable offence.
  • It is a bailable offence.

Important Case Law

Jagannath Shah v. State of Bihar[2]

There was a rebute among the two brothers who were quarrelling and abusing each other on a public road in a town. A huge number of people gathered around them. Even the traffic was struck and rush created but no actual fight broke out between them. It was held and observed by the Court that the conduct does not possessed fight and it merely a verbal, hence lack of essential of affray, no offence of affray was committed.

Babu Ram and Anr. vs. Emperor[3] 

A person was assailed and overpowered by two other persons in a public place. He could have no other way to defend himself. It was held that they were guilty of the offence because the essential of affray was there, fighting in a public place which disturbed the public peace and tranquillity or the atmosphere.

State v. Meer Singh[4]

Three men were fighting which results in the disturbance of the peace of that particular locality. It was the admitted case of both the accused persons that they were fighting in a Gali and definitely in such a fight, it was natural that disturbs the public peace and for doing that they have to suffer hence, they put for the conviction under the offence of affray.

Conclusion

Affray is an offence where two or more than two persons are involved and offered a blow to each other in order to prove the majesty over sovereign subject. And committing an offence of affray will be made liable for imprisonment and for the fine or maybe both. There is water-tight difference in common law and Indian law as far as affray is concerned, however, there are some other elements of crime like assault and riot which is different from affray but some of their ingredients seems to be similar in nature.

The offence of affray is, thus, considered as bilateral act means to flow from both directions not involve only one side, in which two or more parties actively participate in scuffle against one another which is conducted at a public place and this results in the turmoil of public peace. It involves an actual fight between the parties to constitute this offence and mere quarrelling and abusing each other would not result in offence of affray. Section 159 of the IPC defines it and Section 160 IPC prescribed the punishment for the offence.

References

  1. AIR 1952 All 788
  2. 1988 (36) BLJR 301
  3. AIR 1937 All 754
  4. https://indiankanoon.org/doc/180066587/

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