Define the offence of Affray as contemplated under I.P.C. and point out the distinction between rioting and affray.

Question: Define the offence of Affray as contemplated under I.P.C. and point out the distinction between rioting and affray. [U.P.C.J. 2012, UPCJ 1984]

Find the answer to the mains question only on Legal Bites. [Define the offence of Affray as contemplated under I.P.C. and point out the distinction between rioting and affray.]

Answer

Section 159 of IPC defines Affray as when two or more persons by fighting in a public place, disturb the public peace, they are said to “commit an affray”.

It means that when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. The offence of affray, as defined in s 159, IPC, postulates the commission of a definite assault or a breach of the peace. Mere quarrelling or abusing in a public place without the exchange of blows is not sufficient to attract the application of s 160, IPC. To constitute affray there must be a fight and it is not a fight when one party is aggressive and the other one is passive. Both the parties need to participate in a struggle. Struggle implies that there are two sides each of which is trying to obtain mastery by violence.

From the above, it is clear that the section requires the following three essentials:

1. Fight between two or more persons;
2. fighting in a public place; and
3. disturbance of the public peace in consequence thereof.

The points that must be proved for convicting an accused on a charge of affray are:

1. that the accused and other persons were fighting;
2. that such a fight was in a public place; and
3. that the fight disturbed the public peace.

Three men were fighting and thus caused a disturbance in the locality. The accused had already admitted that they were fighting in a Gali. It was obvious that led to the disturbance of the peace of the public and thus convicted under the offence of affray. (State v. Meer Singh, AIR 1937 All 754)

On the other hand, Section 146, IPC states that whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

Distinction between rioting and affray

1. A riot can be committed only by five or more persons, while an affray can be committed by two or more persons.
2. A riot can be committed even in a private place while an affray can be committed only in a public place.
3. In a riot, every member of the unlawful assembly is punishable although one of them may not have personally used force or violence while in the affray, only those persons are liable who actually engage themselves.
4. Riot is a serious offence whereas affray is a minor offence.
5. The offence of committing riot is punishable with imprisonment for two years or with fine, or with both whereas in affray the offence is punishable with imprisonment for one month, or with fine up to one hundred rupees, or with both.
6. In rioting, the purpose or common object must be one of those specified in section 141, IPC whereas in affray the fight may be for any reason.

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