The Criminal Procedure Code, 1973 has now made it a cognizable offence: The ingredients of Section 159 are: i) Two or more persons must fight; ii) They must fight in a public place; iii) They must disturb the public peace. An affray requires two persons at least whereas an unlawful assembly requires five. The fight must be in a public place. ‘Public place’ is a place where the public go, no matter whether they have a right to go or not.
For example an omnibus, a railway platform, a public urinal and a goods yard of a railway station are public places. An affray is an offence against the public peace because it is committed in a public place and is likely to cause general alarm and disturbance. Merely causing of public inconvenience is not enough. Quarrelsome or threatening language will not amount to an affray.
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. An affray requires two sides fighting. Passive submission by one party to a beating by the other will not do. Nor will mere howling in pain do. An answering challenge or war-cry or even an active nonviolent resistance might do. So where a person does not resist back violently or non-violently when he is beaten by others, the latter cannot be convicted under Section 160 of the Code.
An offence under Section 160 is non-cognizable, but it may be cognizable if it amounts also to an offence under Sec. 34 of the Police Act. In either case, summons must be ordinarily issued in the first instance. It is bailable but not compoundable, and may be tried by any Magistrate, and is triable summarily.
In Jagannath Sah v. R [(1937) OWN 37] two brothers were quarreling and abusing each other on a public road in a town and a large crowd gathered around them and the traffic was jammed but no actual fight took place. It was held that no affray was committed in the absence of actual fight.
According to H.S. Gour, a drunken brawl in the public street where two or more persons shout at and pull one another is not affray. In Babu Ram v. S [(1930) 53 All 229] two persons attacked in a public place and overpowered another person, who merely defended himself.
It was held that the two persons were guilty of affray, as there was a ‘fighting’ in a public place, notwithstanding the fact that the third person only defended himself in exercise of his right of private defence.