Case Note & Summary
The High Court of Judicature at Bombay, Nagpur Bench, heard a criminal application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking quashing of charge-sheet No.262/2023 dated 24/11/2023 arising out of Crime No.676/2023 registered at Police Station Gondia City for offence punishable under Section 160 of the Indian Penal Code, 1860. The applicants, four private individuals, were accused of affray following an incident at K.T.S. Hospital, Gondia. Non-applicant No.2, a police constable, had lodged an FIR alleging that on 22/10/2023 when two persons had come to the police station to lodge cross-complaints of abuse and assault at Durga Chowk, Gondia, police took them for medical examination to K.T.S. Hospital. At the casualty ward, the applicants and two other accused allegedly started fighting in the hospital premises. The informant and other staff intervened and stopped them. The FIR alleged that the accused were fighting in a public place, and therefore an offence under Section 160 IPC was registered. The applicants argued that the essential ingredients of affray under Section 159 IPC were not satisfied because even if the allegations were accepted as they were, there was no disturbance to public peace, which is a necessary ingredient. They relied on an unreported decision of the Aurangabad Bench in Criminal Application No.3624 of 2023. The State, through the Additional Public Prosecutor, opposed quashing, contending that the accused were quarrelling and assaulting in the hospital and that only police intervention prevented escalation, and that the charge-sheet having been filed, the accused should face trial. The Court examined the FIR, charge-sheet, and statements recorded under Section 161 of the Code of Criminal Procedure. It noted that Section 159 IPC defines affray as when two or more persons, by fighting in a public place, disturb the public peace. The Court held that three ingredients must be satisfied: two or more persons, fighting in a public place, and disturbance to public peace. While the first two ingredients were present, the material did not show that the fighting caused disturbance to public peace. The Court referred to the Aurangabad Bench order and the Supreme Court decision in Mahant Kaushalya Das v. State of Madras, AIR 1966 SC 22, which held that mere public inconvenience is not sufficient. Applying State of Haryana v. Bhajan Lal, AIR 1992 SC 604, the Court concluded that the allegations, taken at face value, did not prima facie constitute an offence of affray, falling within clause (a) of paragraph 8.1 of Bhajan Lal. Accordingly, the Court allowed the criminal application and quashed charge-sheet No.262/2023 dated 24/11/2023 arising out of FIR No.676/2023 along with criminal proceeding S.C.C. No.3374/2023 pending before the learned 2nd Judicial Magistrate First Class, Gondia. Rule was made absolute with no order as to costs.
Headnote
A) Criminal Law - Affray - Essential Ingredients of Section 159 IPC - Indian Penal Code, 1860, Sections 159 and 160 - To constitute affray there must be two or more persons fighting in a public place, and such fighting must disturb public peace. In the present case, although the applicants fought in a public place (hospital) and were stopped by police, the charge-sheet material did not show disturbance to public peace, so the essential third ingredient was absent. Held that no offence under Section 160 IPC was made out (Paras 8-10). B) Criminal Procedure - Quashing of Charge-Sheet - Section 528 BNSS and Bhajan Lal Clause (a) - Bharatiya Nagarik Suraksha Sanhita, 2023, Section 528 - Where allegations in the FIR/charge-sheet, even if taken at face value and accepted in entirety, do not prima facie constitute any offence, the proceeding is liable to be quashed. The court found the case fell within clause (a) of Bhajan Lal and quashed the charge-sheet and criminal proceeding (Paras 11-12).
Issue of Consideration
Whether the charge-sheet for offence punishable under Section 160 IPC could be quashed when the material did not show disturbance to public peace, an essential ingredient of affray under Section 159 IPC.
Final Decision
The criminal application was allowed. Charge-sheet No.262/2023 dated 24/11/2023 arising out of First Information Report No.676/2023 dated 12/10/2023 registered with Police Station Gondia City for offence punishable under Section 160 IPC along with criminal proceeding S.C.C. No.3374/2023 pending on the file of learned 2nd Judicial Magistrate First Class, Gondia were quashed and set aside. Rule was made absolute with no order as to costs.
Law Points
- For affray under Section 159 IPC
- there must be two or more persons fighting in a public place and disturbance to public peace
- mere fighting without disturbance to public peace is insufficient
- allegations taken at face value must prima facie constitute an offence to avoid quashing under Bhajan Lal
- Section 528 BNSS permits quashing of charge-sheet when no offence is made out
