In Re: Muthusamy Ayyar and Others

Pandrang Row, J.—The petitioners who are twenty in number and four others were convicted of affray by the Sub-Divisional Magistrate of

Cheyyar and fined Rs. 10 each.

The principal objections taken to the convictions are: (1) that the occurrence was not in a public place, and (2) that there was no breach of the

public peuce. The second point does not seem to have been raised in the Court below, in any case, there is no reference to it in the judgment of the

Magistrate.

With regard to the first point, the Magistrate expressed himself as follows:

The scene of offence is an open field with no compound walls, It is a place where the public go no matter whether they have a right to go or not.

I think this is a correct and sufficient decision on the point raised. Whether a place is public or not does not necessarily depend on the right of

the public as suel to go to the place, though of course a place to which the public can go as of right must be a public place. The place where the

public are actually in the habit of going must be deemed to be public for the purpose of the offence of affray; for instance, place like Railway

Platforms theatre balls, and open spaces resorted to by the public for purposes of recreation amusement, etc. Reference has been made to a

number of decisions on this point, viz Queen Empress v. Sri Lal 17 A. 166 : 1895 A.W.N. 42, Sukhnandan Singh v. Emperor AIR 1922 All. 542

: 65 Ind. Cas. 419 : 44 A. 265 20 A.L.J. 80 : 23 Cri.L.J 67; Emperor v. Babu Ram 49 A 913 : 103 Ind. Cas. 202 : 25 A.L.J. 578 : 8 A Cri.L.R.

. : 28 Cri.L.J. 666 : 8 A.I.Cri.R. 159 : AIR 1917 All. 560, Emperor v. Jusub Ali 29 B. 388 and Emperor v. Hussain 30 B. 348, and also Hari

Singh v. Jadu Nandan Singh 31 C. 542, which was approved in Emperor v. Musa 40 M. 586 : 36 Ind. Cas. 839 : 31 M.L.J. 285 : (1916) 1

M.W.N. 196 : 4 L.W. 503 : 18 Cri.L.J. 7. A consideration of these rulings shows that the Magistrate''s view which is tersely put is substantially

correct. The evidence in the case ever on the side of the defence shows that there was a large crowd present at the spot from 150 to 300 while the

number of people who took part in the disturbance by throwing stones was only about 25ft is very clear from this, namely, the presence of a large

crowd at the spot,: that the place must have been actually a public place at the time besides being open to access by the public.

As regards the second point, the presence of large numbers of the public at the time of the disturbance which took at least a quarter of an hour,

shows that the members of the public must have been alarmed by reason of the disturbance and that there was sufficient breaking of the public

peace within the meaning of Section 159, Indian Penal Code. It 4s not necessary that any particular member of the public must give evidence to

the effect that he was alarmed or frightened before a conviction can be had for an offence punishable u/s 159, Indian Penal Code. If it is likely that

such alarm would have been caused to the public or members of the public, the necessary ingredient is established. It follows, therefore, that there

is no reason to interfere with the conviction of the petitioners in revision; and as regards the sentence, it cannot be said to be unnecessarily and

unduly severe. The petition is accordingly dismissed.