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Offences Against Public Tranquility: Rioting and Affray

Offences against public tranquility, which are commonly known as group Offences and lead to disturbance of public peace, hold a middle place between the offences against the State on the one hand, and offences against person and property on the other. This particular article deals with Rioting and Affray.

Rioting

  1. Definition
    Section 146 defines the offence of rioting. Section 146 states that- Whenever force or violence is used by an Unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. The prerequisite for applying this provision is that there should have been an unlawful assembly as defined in section 141, IPC, that force or violence was used by the assembly or by any member of the assembly thereof in prosecution of the common object of the assembly, and finally that an offence has been committed.

    It is to be noted that mere intention to use force is not sufficient and that force or violence must have actually been used by the assembly or by any of its members. All this presupposes that there was a common object of the assembly, which object was naturally unlawful. Thus, where the common object is not established by the prosecution, the accused would be entitled to be acquitted.
     
  2. Essentials of Rioting
    The essence of the offence of rioting lies in the use of force to achieve a common purpose. The essentials of section 146 are as follows:
    1. That the accused persons, being five or more in number formed an Unlawful assembly;
    2. That they were animated by a common unlawful object;
    3. That the force or violence was used by the Unlawful assembly or any member thereof;
    4. That such force or violence was used in prosecution of their common (unlawful object). i
       
  3. Punishment for Committing Riot with Deadly Weapon
    Section 148 is an aggravated form of the offence of rioting mentioned in section 146 and punished under section 147 of the IPC. It provides an enhanced punishment for a person who is armed with a deadly weapon while committing rioting. A mere fact that a person was carrying a deadly weapon while committing rioting makes him liable for the enhanced punishment as it converts "rioting" (under section 146) into an "aggravated rioting" (under section 148). Section 146 and section 148 are, thus, distinct.

    To constitute an offence under section 146, the members of the unlawful assembly need not carry weapons. But to constitute an offence under section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under section 148 and the person charged with an offence under section 148 must also be armed with deadly weapon ii.

    In an unlawful assembly that 133 used force, if there, along with others, is only one member armed with a deadly weapon, he alone, and not other unarmed members of the assembly, will be liable under section 148.iii Rest of the members will be liable under section 147, IPC. iv Section 148, therefore, cannot be read with the provisions of section 149 of the IPC.v A person cannot be charged simultaneously with the offence contrary to section 147 and section 148. He only be held guilty either of the provisions.vi
     
  4. Punishment for Provoking Riot
    Section 153 states that -Whoever, malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

    Section 153 provides punishment for a person who, by doing an illegal act, maliciously or recklessly, gives provocation to another person to commit a riot.vii It brings within its ambit provocative words or acts that do not amount to instigation or abetment.viii The words by doing an illegal act connotes that provision of the section cannot be invoked unless the act done by a person was illegal accompanied with his intent or knowledge that it would provoke others to commit riot.ix However, it excludes from its operation a mere chance provocation.x To invoke section 153, the provocation given must b likely to cause rioting.
     
  5. Liability of a Person for Whose Benefit Riot is Committed
    Sections 154-156 of the IPC deal with constructive liability of a person having interest in the land on which an unlawful assembly is held or a riot is committed and of a person for whose benefit such an assembly or riot is committed.

    Section 154 imposes criminal liability on an owner or occupier of land or a person having an interest in land for the failure of his servant or manager to give information to the public authorities or to take adequate legal measures to stop the occurrence of an unlawful assembly or riot upon the land of such an owner or occupier.

    To be more precise, section 154 imposes liability on an owner or an occupier of the land on which an unlawful assembly or a riot has taken place for the following omissions of his servant or manager:
    1. failure to give earliest notice to the public authorities about the unlawful assembly or riot;
    2. intentional failure to give notice of the unlawful assembly or riot which was about to be held or committed and
    3. abstention from taking appropriate measures to suppress an unlawful assembly or riot. The owners liability does not depend upon his knowledge of the riot or of the acts and intention of his servant or manager. He is punished for the taking place of an unlawful assembly or riot on his land.

     
Sections 155 and 156 deal with the liability of persons for whose benefit a riot is committed. The former deals with liability of the owner or an occupier of the land on which an unlawful assembly or a riot, who has derived benefits from such an assembly or riot and he or his agent, knowing or having reasons to believe that such assembly or riot is likely to take place, has failed to use lawful means within his reach to prevent, suppress or disperse it.

While the latter section holds an agent or a manager of an occupier or an owner of the land on which a riot has taken place and from which such an owner or occupier has derived benefits responsible for his failure, having reasons to believe that such a riot is likely to take place, to resort to all lawful means within his power to prevent or suppress such a riot.

To invoke section 155 the prosecution needs to prove that:
  1. a riot is committed for the benefit or on behalf of land owner or occupier;
  2. such riot took place in respect of the land, of which the accused is either the owner or an occupier;
  3. the accused accepted or derived benefits therefrom and
  4. he, his agent or manager, having reasons to believe that such a riot was likely to be committed or such an unlawful assembly to be held, has not used lawful means to prevent or oppress or disperse the riot or the unlawful assembly.

To constitute an offence under section 156, which imposes personal liability on the managers or agents of such an owner or occupier, it is required to prove that:
  1. a riot was committed;
  2. the riot was committed for the benefit of the owner or occupier of the land;
  3. the accused had reasons to believe that a riot was likely to be committed and
  4. the accused failed to appropriate measures to prevent it.
1.6.Liability of a Person for Obstructing Suppression of Riot
Section 152 stops a person from using force or threatening to use force against a public servant with a view to deterring him from dispersing an unlawful assembly or suppressing a riot or affray. It accordingly holds a person liable to an imprisonment for a term up to three years or with fine or with both, if he resists or attempts to resist a public servant in his endeavour to disperse an unlawful assembly or suppress a riot or affray.

Section 152, IPC, states that- Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant in the discharge of his duty as such public servant, in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, or uses, or threatens, or attempts to use criminal force to such public servant, shall be punished with imprisonment of either description for a term which may be extended to three years, or with fine, or with both.

2. Affray

2.1. Definition
When two or more persons, by fighting in a public place, disturbs the public peace, they are said to commit an affray under section 159, IPC. The punishment for committing affray is defined under section 160, IPC, which is imprisonment for up to one month or fine up to one hundred rupees or both.

It means that when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. The offence of affray, as defined in section 159, IPC, postulates the commission of a definite assault or a breach of the peace. Mere quarrelling or abusing in a public place without exchange of blows is not sufficient to attract the application of section 160, IPC. xiTo constitute affray there must be a fight and it is not fight when one party is aggressive and the other one is passive. xiiBoth 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.

2.2.Essential for committing Affray
From the definition, it is clear that the section requires the following three essentials xiii:
  1. Fight between two or more persons;
  2. fighting in a public place; and
  3. disturbance of the public peace in consequence thereof.

The point that must be proved for convicting an accused on a charge of affray are:

  1. That the accused and other persons were fighting;
  2. that such a fight was in public places; and
  3. that the fight disturbed the public peace.

2.3. Distinction between Riot and Affray
Riot Affray
May be committed in any one place, public or private. Must be committed in a public place and cannot be committed in a private place.
Must be committed by five or more (minimum number must be five). Must be committed by two or more (minimum number must be two).
There must be common object and it must be one of the five mentioned in section 141. There may be or may not be common object.
Is generally premeditated. May be sudden and unpremeditated.
Punishment (ordinarily): Imprisonment of either description for two years or fine or both (section 147). Punishment (ordinary): Imprisonment of either description for one month of fine up to Rs 100 or both (section 160).


3. Proposal For Reform
The Fifth Law Commission has suggested a set of reforms in the chapter. A few prominent among them, with justifications, are outlined here below: xiv
  1. With a view to checking rioting at its earliest stage, it suggested that preparatory acts, like collecting sticks, knives and other weapons of offence, acid bulbs, brickbats etc, by antisocial elements who are bent on committing mischief should (through proposed new section 147A) be made punishable by imprisonment for a term up to one year or with fine or both.xv
     
  2. Referring to section 153, the Law Commission opined that the expressions malignantly and wantonly appearing therein, which, in the light of tenor and tone of the provision, do not add anything to the other requirements of the section, are unwarranted and therefore need to be deleted.
     
  3. The word intentionally should be inserted before the word promotes in the existing section 153A for making it clear that mens rea is essential for warranting liability and thereby protecting any honest criticism without malice from mischief of section 153A.
     
  4. Perceiving that punishment provided for the offences in sections 154-156 and 160 is lenient, it recommended that the sentences provided in these sections be replaced by sentence of six months' imprisonment of either description or fine or both.

References:
  1. Hazara Singh v. State of Punjab (1971) 1 SCC 529
  2. Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudubhai Patel, (2018) 7 SCC 743.
  3. Haripada Parui v. State of West Bengal, (1988) Cr Lj (NOC) 3 Cal.
  4. Barendra v. State, (1978) Cr Lj (NOC) 90 (Gau).
  5. Nanda Kishore v. State, AIR 1961 Ori 29.
  6. Supra Note at 2.
  7. Manzae Sayeed Khan v. State of Maharastra, AIR 2007 SC 2074.
  8. Emperor v. Ahmed Hasham, (1932) 35 Bom LR 240
  9. State of Madhya Pradesh v. IndraSingh, AIR 1962 MP 292.
  10. State of Orissa v. RC Chowala, AIR 1966 Ori 192.
  11. Sheoraj Singh v. State of Uttar Pradesh, (1978) Cr Lj (NOC) 84 (All).
  12. C Subbarayudh v. State of Andhra Pradesh, (1966) Cr Lj 1472 (AP).
  13. R Rangaana V. State of Andhra Pradesh, (2010) Cr Lj 1275 (AP).
  14. See,Law Commission of India, Forty-Second Report: The Indian Penal Code, Government of India, 1971, paras
    8.18, 8.25, 8.27-8.31.
  15. See Law Commission of India, One Hundred and Fifty-Sixth Report: The Indian Penal Code, Government of
    India, 1977, para 12.31.

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