John Edge, Kt., C.J. and Banerji, J.
1. This is an application for revision of an order of the Sessions Judge of Farakhabad dismissing the appeal of the applicants from a conviction under Section 160 of the Indian Penal Code.
2. The fighbing appears to have taken place on a chabutra, which from the evidence in the Court below appears to have been private property adjoining a public thoroughfare. We infer from the evidence that that chabutra was neither a place to which the public had a right of access, nor a place to which the public were used to have access, nor was it a place to which the public were ever permitted to have access, though it adjoined a public road. We must look to Section 159 of the Indian Penal Code to see what are the ingredients of the offence of an 'affray.' Section 159 runs as follows:
3. 'When two or more persons by fighting in a public place, disturb the public peace, they are said to commit an 'affray.' It will be observed that this section does not make fighting 'in public,' which is likely to disturb the public peace, an affray. The fighting disturbing the public peace which is an affray, is fighting which takes place in a 'public place.' No doubt the fighting in this case on the chabutra was fighting in public, because the public could see what was taking place.
4. Some of the statutes in England make acts penal which are done in public, others make acts penal which are done in a public place, so that in the criminal statute law in England, the distinction is, it will be observed, between doing an act in public and doing an act in a public place. As the chabutra was not a place to which the public had by right or by permission, or by usage or otherwise, access, we must hold that it was not a public place, although any member of the public walking along the street could walk on to it, but in doing so he would be committing a trespass.
5. Under these circumstances we must set aside the convictions. We acquit the applicants, and order that the fines, if paid, be refunded.