Anna Chandy, J.
1. The six revision petitioners were convicted by the Special First Class Magistrate. Badngara, under Section 160 I.P.C. and sentenced to pay a line of Rs. 50/- each or in default of payment to undergo rigorous imprisonment for one week.
2. The case against the accused is that at about 4 p.m. on 19.10.1960 accused 1 to 4 on one side and accused 5 and 6 on the other beat each other on the public road in Thekkunni Bazaar arid thereby committed an offence of affray. Accused 1 Podan went to the Sub-Inspector of Police, P.W. 1 on 20.10.1960 and complained that on 19.10.1950 at about 4 p.m. he was beaten by die accused 5 and 6 on the public road in the bazaar. The Sub-Inspector noticing some injuries on the complainant, recorded a statement from him (Ext P-1) and sent him to the hospital for treatment. He proceeded to investigate the case and finally charged all the six accused under Section 160 I.P.C. for fighting in a public place.
3. Two tea shop-keepers P.Ws. 2 and 3 were examined as eye-witnesses. They stated vaguely and in general terms that all the accused took part in a fight, without giving any information as to who did the beating or who1 received the blows. They also added that the incident caused inconvenience to the general public.
4. The, first accused stated that he was beaten by accused 5 and 6. Accused 2, 3, 4 and 6 denied their presence at the spot and accused 5 said that he was beaten by accused, 4 and that he did not beat back.
5. The conviction, is based on the evidence of P.Ws. 2 and 3 and the admissions made by accused 1 and 5 that they were beaten.
6. It was strenuously contended by Shri V.R. Krishna Iyer for the revision petitioners that the offence of affray is not made out. I think the objection must prevail. It is only 'when. two or more persons by fighting in a public place disturb the public peace that they are said to commit an affray.' The word 'fight' connotes a bilateral act in which two parties participate and it will not amount to an affray when the party who is assaulted submits to the assault without resistance. In Rami Reddi v. Narasi Reddy AIR 1938 Mad 924 it was observed that:
To constitute an affray there must be a fight. Fighting connotes necessarily a contest or struggle for mastery between two or more persons against case another. A struggle or a contest necessarily implies that there are two sides each of which is frying to obtain the mastery, so that unless there 'some violence offered' or threatened against one another, there could be no fight but Only a mere assault or beating.
In an earlier case Ratnam Pillai v. Emperor 1933 Mad WN 721 Curgenven J., observed that-.To support a conviction for affray each person concerned in it must be -shown to have been fighting is a public place, and no question of mere constructive liability enters into it. The court must be satisfied that each one of the accused took an active physical part in the process of fighting.
Ellappa v. Ellappa : AIR1950Mad409 was a ease in which a washerman who was beaten in a public place tamely submitted to the beating without the least retaliation and simply 'howled in pain.' Panchapakesa Ayyar, J., observed that:
Passive submission to beating by the other side will not do. Nor will mere howling in pain do. An answering challenge or war cry or even an active non-violent resistance might have done.
I may add with respect that it is doubtful whether non-violent resistance by the party assaulted would make the assault an affray. The eye-witnesses do not speak of a fight between two parties. The admission of accused 1 and 5 only goes to show that they were beaten and there, is nothing to make out that they beat back or in any other way resisted.
7. Again, there must be a definite disturbance of the public peace due to the fight in the public place to make the offence afiray. What P.Ws. 2 and 3 said is that people gathered and inconvenience was caused to the public. Disturbance of peace and causing inconvenience to the public are two entirely different notions and the offence of affray is made out only when persons are fighting in a public place and thereby public peace is disturbed. In the absence of the existence of the necessary ingredients of the offence, the accused have, only to be acquitted.
8. Before parting with the case, I have to mention a word about the illegality in the procedure adopted by the Sub-Inspector that was stressed By Shri V.R. Krishna Iyer. Both offences under Section 323 and Section 160 I.P.C. are non-cognizable. When the first accused went to the Sub-Inspector to complain about the assault, he recorded a signed statement from the informant and sent him to the hospital for treatment. Then he entered on a regular investigation of the case, though he would call it an enquiry. Section 155 expressly prohibits the investigation by the police suo motu of non-cognizable offences. The order of a Magistrate is a condition precedent for investigation into a non-cognizable offence by a police officer, The Sub-Inspector's attempt to explain the situation by saying that he was Only enquiring into the offence cannot be accepted. Recording a signed statement from accused 1 (which is later used in court as evidence against the accused) and questioning the witnesses and reducing their statements to writing (Pw. 3 says so) are definite acts of investigation done by the officer, I can understand police officers of their own accord filing complaints in non-cognizable offences committed in their view On the strength of the enabling provision in the Police Act, but a deliberate disregard of the prohibition under Section 155 has only to be deprecated. The provisions of the Cri.P.C are meant to be obeyed and police officers are not allowed deliberately to contravene those provisions, in the hope that the irregularities they commit will be cured under Section 537 of the Code. In this case it cannot be said that the irregularity has not resulted in the failure of justice since the signed statement taken from the accused was used in evidence against him.
9. Legislature had a purpose when, it divided offences into cognizable and non-cognizable and placed a bar on police officers investigating into non-cognizable cases without orders from the Magistrate. If a Police Sub-Inspector as in this case were to take cognizance of non-cognizable offences, record signed statements from the accused, proceed to the spot, examine witnesses and practically do everything necessary for the investigation of cognizable, offences, his action cannot certainly be justified. In fact in a reported case of this High Court in State of Kerala v. Devassy, : AIR1958Ker194 such over zealousness of the police officer was found to be due to a desire to wreak private vengeance which resulted in failure of justice.
10. The revision petition is allowed and the conviction and sentence entered against the petitioners are set aside.