The Rule of Affray

Introduction:

We love to live in a tranquil and courteous society. But because of some disordered people in the society, the tranquility of our society vanishes. These people either knowingly or unknowingly put the calmness of our society at stake.

Many a time people indulge in a fight in the public place which defeats the calmness of the society and due to this people nearby suffer. This scenario is known in legal language as affray. Affray is when two or more people fight among themselves in a place which is open to the public example restaurants, street, e.t.c., if people engage themselves in the same activity in any private place then it is not affray but will come under the definition of assault. The general public is affected when such incidents occur in public places and hence has been kept in the same category.

The evolution of the word ‘affray’ is from the French word ‘affraier’ which means ‘to terrify’ and therefore we can conclude that affray is a legal wrong which terrifies people. Therefore if the act of two or more people terrifies the public in general then it means the offense of affray has been committed. The offense of affray disturbs the public peace and hence is an offense against the public at large. It constitute physical violence and not just verbal threat. The requirement is a threat to people in any public place due to the violent acts of two or more people.

Meaning

The word “affray” is used to depict the fight between two or more persons, there must be the use of physical force, this use of physical force must be in some public place and due to this there must be fear in the mind of people around. Section 159 of the Indian Penal Code defines affray as an offense committed by two or more people by engaging themselves in a physical fight, this fight disturbs the public peace. 

Affray is a punishable offense. Section 160 of the Indian Penal Code prescribes punishment of imprisonment up to 1 month or fine up to one hundred rupees or with both. Mere using abusive words and having a verbal quarrel is not enough to attract this provision, physical fight is necessary in the affray. Moreover, people engaged in such a fight should actively participate in it. In case if two persons attacked a man, and he defended himself in the public place yet it will constitute affray though the man was acting in his right of private defense.[1]

In the case of Jaggannath Shah, two brothers were quarreling in the street due to which traffic was blocked and inconvenience was caused to people, yet this did not come under the purview of definition of affray because there was no actual fight.[2]

Affray under English Law[3]

As per the English law in case if two or more persons brawl among themselves in a public place and this generates terror in the mind of the sovereign subject then it will constitute an offense of affray, this is an offense in the eyes of the common law. If any place only those persons are present who are indulged in fight this won’t amount to affray as there will be no one in whose mind terror is caused. However, the activities constitute an offense but it won’t attract affray.

In an aggravated form of affray, people disturb the tranquility obstruct the public officers carrying a prisoner in order to escape him. This offense comes under the category of severe offense in the queen’s court. However mere quarreling is not enough to constitute the offense of affray fear must be created in the mind of subjects. But people equipped with dangerous weapons abuse each other aggressively then terror will be created in the mind of people and hence conditions of affray gets fulfilled.

Affray under the Indian Penal Code

Section 159 of Indian Penal Code Affray as when more than two people disturb the tranquility by fighting in the public place then it constitutes the offense of Affray. The offense will amount to affray if two or more people get involved in a fight, which in turn disturb the peace of the society.

Ingredients of Rule of Affray[4]

The definition of Affray as per the Indian Penal Code has the following essential ingredients:

• Fight between two or more people,
• The venue of the fight should be a public place, &
• The fight must have a negative impact on public tranquility.

Fight between two or more people

The offense will come under the ambit of Affray only when two or more people engage in a fight, there must be active participation of all the people involved. If two or more people do not participate actively then it will constitute the offense of assault rather than that of assault.  When two people engage in competition then they try to overpower each other by use of force and hence this is an essential ingredient in any fight. If only one person or people belonging to him attack another person(s), then it won’t constitute an affray as there is no participation from the other side. This was proposed in the case of Jodhay and Others v. State Through Raam Saahai [5] that fight under the section 160 Indian Penal code is not merely a quarrel but is one step ahead. The judges of the apex court and the high court define fight as the battle to defeat the person opposing from the opposite end.

 Quarrel means expressing anger in words, but not in a normal tone, pitch should be high enough. This makes the difference between the two quite evident.

The venue of the fight should be a public place

A public place means a place where the public has free access to go. It is irrelevant whether anyone is prohibited to visit such a place due to any reason, if the public has free access to go thee then it is a public place. There is a difference between ‘act took place in public’ and ‘act occurred in a public place’ what is made punishable is an act done in a public place and not in public. This distinction is there in English law as well as in Indian law for affray.

However, the act committed in a public place should breach the tranquility of that place. If the fight occurs in a public place where there is no public then it won’t constitute affray, for affray, there must be a sense of disturbance in the society.  Many times the party or celebration is organized at a private place but since the public as a right can go there then it will for the time being will be considered as public property[6].   Similarly places like temple, church will be considered as public place when it is open for the general public.

Fight must have a negative impact on public tranquility

To come under the ambit of affray the fight between two or more people must disturb the public calmness, it is the offense of affray because it disturb the public tranquility else not. The act which only causes the inconvenience will not constitute an offense of affray[7], for its actual disturbance of calmness is essential.

Defenses to the Rule of Affray

A person accused of affray can do away with the charge by pleading it as an act of self-defense against his person or property.

A person can also take the defense that there was no disturbance to the public tranquility, or that there was no actual fight in which he was involved. 

There are other defenses available in other jurisdictions like in New South Wales, the act of necessity and compulsion can be the defense against the rule of affray.

Punishment for Committing Affray

Section 160 of the Indian Penal Code prescribes the punishment of affray, according to it, any person guilty of an offense of affray shall be punished with imprisonment of either description of the term up to 1 month or with fine up to 100 rupees or with both.

More about Affray

Both the group or person who together commit the offense of affray will be liable for it.

• The offense of affray is cognizable as per the Code of Criminal Procedure, 1973.
• The offense comes under the category of a non-compoundable offense.
• And it is a bailable offense.

In the case of Meer Singh v. State[8], three men got involved in a fight with each other in the locality and due to this, the peace of that locality got disturbed. All three accused accepted that they were fighting and it disturbed the tranquility of the locality, hence all three were made punishable for the offense of affray.

Distinction between Affray and Assault

An affray and assault have the following distinction:

1. It is an essential element in the rule of affray that a fight must occur in a public place but in the case of assault place of occurrence of incidence does not matter. Unlike as in assault in affray there must be presence of general public.
2. The offense of assault is an offense against the person assaulted but affray is an offense against the general public ( public at large).
3. Affray will become assault if it is committed in any public place.

Distinction between Affray and Riot 

The points of distinction between affray and assault are:

1.  The act of fighting between two or more people will amount to affray only when the venue is a public place but riots can occur in public as well as in private place.
2.  The minimum number of people needed for constituting an offense of affray is 2 but it is 5 in case of a riot.
3. In case of riot, there must be an unlawful assembly, it is its first step but it is not in case of affray.

Conclusion

An offense will take shape of affray if more than two or two people get to indulge in a fight in a public place. An affray is considered as a bilateral act and hence it needs active participation from both of the side. In English common law affray was an offense for disturbing the peace and stability of sovereign subjects. The Indian Penal Code defines affray in its section 159 and makes it a punishable offense whose punishment is prescribed in section 160 i.e. imprisonment of either nature for up to one month or fine which may be up to one hundred rupees or with both.      

The offense of affray flows from both sides as it is not a unilateral act. To constitute an offense of all the essentials mentioned above must be fulfilled.

The offense of affray is against the public in general who got disturbed, and hence unlike a wrong against an individual it is wrong against the society.

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References:

[1] Case of Babu Ram v Emperor, (1930) LLR 53 All 229, (India).

[2] Jaggannath Shah v. State of Bihar, (1937) O.W.N. 37, (India).

[3] Digganth Raj Sehgal, What is Affray?, ipleaders, https://blog.ipleaders.in/what-is-affray/#respond

[4] Twelth edition, The Indian Penal Code, Surya Narayan Mishra, Page No 361.

[5] Jodhay and Others v. State Through Raam Saahai, AIR 1952 All 788, (India)

[6] Per Grove, in Wellard, (1884) 14Q.B.D. 63

[7] Podan, (1962) Cri. All 229, (India).

[8] Meer Singh v, State, AIR 1937 All 754, (India)