(i) Two or more persons should fight, (ii) in a public place, (iii) disturbing the public peace.
Image Source: i.ytimg.com
(i) To constitute an affray there must be a fight, and it is not a fight when one side is aggressive and the other side is passive. Fighting connotes necessarily a contest or struggle for mastery between two contestants against each other.
ADVERTISEMENTS:
A struggle or a contest necessarily implies that there are two sides, each of which is trying to obtain the mastery over the other. Where members of one party beat member of another party and the latter do not retaliate or make any attempt to retaliate, but remain passive, the offence of affray cannot be said to have been committed because there is no fight in such a case though there may be an assault. It may be noted that a fight is bilateral in which both the parties should participate.”
(ii) A public place is a place where the public go, no matter whether they have a right to go or not. The place where the public are actually in the habit of going must be deemed to be public place for the purpose of the offence of affray.
Instances are railway platforms, theatre halls and open spaces resorted to by the public for purposes of recreation, amusement, etc. An open field with no compound wall is a public place. A private chabutra adjoining a public thoroughfare, a railway station and platform at a time when no train is due except a goods train and a private garden are not public places.
(iii) To constitute an affray, there must be not only fighting, but the fighting must cause a disturbance of the public peace. There should be a terror to the public. The presence of a large number of the people at the time of the disturbance show that the members of the public must have been alarmed by reason of the disturbance and that there is sufficient breaking of the public peace.
ADVERTISEMENTS:
A drunken brawl in a public street where two or more persons shout at and pull about one another constitutes an affray. Mere causing public inconvenience is not sufficient.