FARUK KADARBHAI MEMON vs STATE OF GUJARAT & ANR.

Rule returnable forthwith. Ms. Thakore, the learned APP, waives service of notice of rule for and on behalf of the respondents.

By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seeks to invoke the inherent powers of this Court praying for quashing of the first information report being C.R.No.II-122 of 2016 registered with the Aslali Police Station for the offence punishable under section 160 of the Indian Penal Code and the subsequent charge-sheet filed by the Investigating Agency culminating in the Criminal Case No.10159 of 2016 pending, as on date, in the court of the learned 5th Addl. Judicial Magistrate, First Class, Ahmedabad.

The first information report was lodged by one Narendrasinh Dinubha, a police constable, Buckle No.680, serving with the Aslali Police Station.

It is the case of the prosecution that the applicant herein, along with one another person (co-accused), was found quarreling just opposite the police station. Both the accused persons were abusing each other, and despite requesting them to stop fighting with each other, they continued. According to the prosecution, this amounts to an offence of affray punishable under section 160 of the Indian Penal Code.

Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that none of the ingredients to constitute the offence of affray punishable under section 160 of the Indian Penal

Code are spelt out. Merely because two persons fight on a public street or enter into an altercation of words, that will not amount to an offence of affray. The necessary ingredients to constitute an affray as defined in section 159 of the IPC , there must be (1) a fighting (2) between two or more persons, (3) in a public place, and (4) consequent disturbance of the public place.

In Ratanlal''s Law of Crimes (21st Edition), at page 392, the learned author observes as follows-

"The offence of affray postulates the commission of a definite assault or a breach of the peace, and mere quarreling or abusing in a street without exchange of blows is not sufficient to attract the application of this section. Where two brothers were found quarreling and abusing each other on a public road and a large crowd gathered and the traffic was temporarily stopped, but no actual fighting took place, it was held that no affray was committed.

In Jagannatha Sah vs. Emperor, 38 Cri. LJ 169: (AIR 1937 Oudh 425) it is pointed out that there is difference between ''affray'' and an ''assault'', the offence of affray as defined in section 159 of the Penal Code postulates the commission of a definite assault and a breach of the peace. Mere quarreling or abusing in a street without exchange of blows is not sufficient to attract the application of this section.

Thus, the offence of affray, as defined in section 159 IPC, postulates the commission of a definite assault or a breach of the peace. Mere quarreling or abusing in a public place without exchange of blows, is not sufficient to attract the application of section 160 IPC.

In the result, this application is allowed. The further proceedings of the Criminal Case No.10159 of 2016 pending in the court of the learned 5th Addl. Judicial Magistrate, First Class, Ahmedabad are hereby quashed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.