The court established that for an affray under Section 160 IPC, it is essential to demonstrate that fighting in public resulted in disturbance to public peace, which was lacking in this case.

JUDGMENT :

M.M. Nerlikar, J.

1. Rule . Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing for the parties.

2. The present application is being filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( BNSS ) for quashing and setting aside the charge-sheet bearing No.262/2023, dated 24/11/2023 arising out of Crime No.676/2023 registered with Police Station Gondia City for the offence punishable under Section 160 of the INDIAN PENAL CODE , 1860 (I.P.C.)

3. Brief facts :

I. Non-applicant No.2, who is a Police Constable of Police Station Gondia City, lodged F.I.R. No.676/2023 under Section 160 of I.P.C. alleging that on 22/10/2023, at about 5:00 p.m., one Aditya Rajesh Solanki and Shubham @ Karansingh Sumersingh Bais approached the Police Station for lodging the complaintS against each other about abusing and assaulting each other at Durga Chowk, Gondia. As both the parties were having minor injuries, the informant along with other police staff taken both the parties to K.T.S. Hospital, Gondia for the purpose of medical examination. At the Casualty Ward of K.T.S. Hospital, when the medical examination was going on, the applicants and other two accused persons allegedly started fighting in the hospital premises. The informant came out and saw that the applicants and other accused were fighting with each other, therefore, he along with other staff stopped the accused persons from fighting with each other. It is further alleged that the accused persons i.e. the applicants were fighting in the public place and, therefore, F.I.R. came to be registered against the applicants.

4. We have heard both parties. The learned Counsel for the applicants submits that the applicants are praying for quashing of the charge- sheet on the ground that no offence is made out as contemplated under Section 160 of I.P.C.. He further submits that the ingredients of Section 159 for committing the offence of affray are not satisfied. He further submits that even though the allegations alleged in the F.I.R. are taken as it is, it cannot be said that the offence is committed under Section 159 of I.P.C. He also submits that though there was fighting amongst the accused persons and others at public place, due to that fighting, there was no disturbance to the public peace, which is an essential ingredient of Section 159 of I.P.C. and, therefore, as there is no breach/disturbance to the public peace, no offence is made out.

5. To buttress his submissions, the learned Counsel for the applicants has relied on the unreported judgment of the High Court of Judicature of Bombay, Bench at Aurangabad in Criminal Application No.3624 of 2023 ( Nadeem Ajij Pathan and another vs. The State of Maharashtra and another ), wherein an identical issue was decided and the Hon’ble High Court, Bench at Aurangabad was pleased to quash and set aside the F.I.R., which was registered under Section 160 of I.P.C.

6. On the other hand, the learned Additional Public Prosecutor, by filing his reply, contended that the applicants and other were quarreling and assaulting each other in the premises of K.T.S. Hospital, Gondia and it is only due to intervention of the informant and staff of the hospital, there was no further escalation. He has further submitted that now the charge-sheet is filed and this is a fit case that the accused-applicants should be tried.

7. We have gone through the charge-sheet, which includes statements recorded under Section 161 of the Code of Criminal Procedure of some of the eye-witnesses. We have also gone through the F.I.R. lodged by non-applicant No.2. The material, which was collected durin