Selvaraj and Kandammal vs The State

M. Chockalingam, J.—The petitioners have brought forth this criminal original petition seeking to quash the proceedings in S.T.C. No. 168

of 2002 pending on the file of the learned Judicial Magistrate, Palladam.

Admittedly, the respondent police filed a charge sheet under Sec.160 of the Indian Penal Code before that Court stating that on 8.6.2001 at

about 10.00 A.M. on Palladam to Mangalore Road at R.V.Nagar in a public place within the Palladam Police Station limits, the accused 1 to 4

noted in the charge sheet, formed into A and B Party respectively, fought with each other and committed an affray. The same was originally taken

by the lower Court as S.T.C. No. 1032 of 2001. As per the charge sheet, the petitioners herein are shown as A Party, and one Jothimani and

Samboornam were shown as B Party. After the lower Court took cognizance of the matter, the said Jothimani and Samboornam admitted the

offence and paid the fine. Thereafter, insofar as the petitioners, who, according to the charge sheet, constituted the A Party, the case was

renumbered as S.T.C. No. 168 of 2002, which the petitioners seek to quash in this O.P.

The learned Counsel for the petitioners would submit that in order to attract affray under Sec.160 of the Indian Penal Code, three ingredients

are necessary; that firstly, there should be two or more persons who indulge in a fight, and secondly, such a fight must be in a public place, and

thirdly, the said fight must disturb the public peace; and that in the instant case, no one of the said three ingredients was attracted. Added further,

the learned Counsel that the Investigating Officer, who enquired both the Parties, should have either filed the charge sheet only against the

aggressors or referred the case itself; but, in the instant case, even after finding the opposite party as aggressors, they have shown the petitioners as

A Party and the opposite party as B Party, and on that ground, it has got to be quashed.

This Court heard the learned Government Advocate for the respondent on the above contentions.

It would be more appropriate and advantageous to reproduce Sec.159 of I.P.C., which defines ""affray"".

Section 150: When two or more persons, by fighting in a public place, disturb the public peace, they are said to ""commit an affray"".

A reading of the said provision would clearly indicate that in order to bring home the guilt of the accused for an offence of affray, the prosecution

should satisfy the three essentials. Firstly, fighting must be between two or more persons. Secondly, fighting must take place in a public place, and

thirdly, such fighting must also result in disturbance of public peace. In the absence of even one of these ingredients, it cannot be stated that there

was either an affray or the accused facing the trial, should be held responsible.

In the instant case, the petitioners are shown as A Party and the opposite party namely one Jothimani and Samboornam were shown as B Party.

It is pertinent to point out that the occurrence has taken place in the house of the petitioners, and thus, it was not in a public place. The members,

who constituted the B Party, have gone to the house of the petitioners and have attacked them, and they were found to be the aggressors. If to be

so, there was no fighting between the parties, since the fighting would mean and connote a contester''s struggle between two or more persons

against one another. Thirdly, there was nothing available to indicate that there was disturbance of public peace, and thus, in the instant case, all the

three ingredients which were necessary to constitute affray, were absent. In view of the same, it cannot be stated that the charge sheet filed under

Sec.160 of I.P.C. alleging that there was a fight between A and B Party was correct.

Yet another illegality and infirmity is also noticed. A mandatory duty is cast on the Investigating Officer to enquire into both the parties and find

out who were the aggressors, and file a charge sheet against them. In the instant case, the police agency finding it difficult, has adopted a short-cut

method by charging both the petitioners as A Party and the other accused as B Party for an offence of affray under Sec.160 of I.P.C. No doubt, a

prejudice was caused to the parties by the said short-circuit procedure. By that, the petitioners who were not the aggressors and not liable to be

charged at all, were placed in such a position to face the trial before the lower Court.

The crowning circumstance in the instant case was that the accused shown as B party, admitted the offence and paid the fine also, and the lower

Court has renumbered the case as S.T.C. No. 168 of 2002, so far as the petitioners were concerned, who were originally shown as A Party. This

Court is of the considered opinion that all the reasons recorded above, would be suffice to quash the proceedings pending on the file of the lower

Court against the petitioners.

Hence, this criminal original petition is allowed, quashing the proceedings in S.T.C. No. 168 of 2002 on the file of the Judicial Magistrate,

Palladam, against the petitioners. Consequently, connected Crl.M.Ps. are closed.