A.

Rioting

The offences related rioting and its punishment are entailed in section 146 and
147 IPC respectively whereas section 148 IPC deals with the much serious form
of rioting wherein there is apprehension of death. As per the section 146 IPC,
rioting is said to be committed when more than 5 persons assemble unlawfully
and engage in acts of force or violence in the pursuance of a common goal.
1. there should be a group of 5 or more persons
2. they must assemble in pursuance of common goal
3. Must engage in acts of force or violence which is unlawful in nature.
Even being part of the unlawful assembly wherein the mob commits such acts
shall also attract the punitive provisions for the same offence. In other words,
only being part of that very mob is enough to be charged with rioting. Section
146 IPC reads as under:
“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 term force is used in reference to the force used against the persons and
may extend to things or property whereas violence is much wider term. Rioting
is bailable, cognizable and non-compoundable offence and can be tried by any
Magistrate. The punishment for rioting is mentioned in Section 147 IPC. The
said section reads as follows:
“Whoever is guilty of the offense of rioting shall be punished with
imprisonment of either description for a term which may extend to two years, or
with fine, or with both.”

Kashthurirangam In re(1970)

Held that active participation is not necessary for actual violence. Some may
encourage by words, others by signs and others again may actually cause hurt and
yet all would be equally guilty of rioting.

It is to be noted that above provision is in accordance when the rioting is not

with deadly weapon or there is no threat to life of person. The punishment
changes when there is threat to life. Provisions for such are contained in Section
148 IPC. The said section reads as under:

148. Rioting, armed with deadly weapon.—Whoever is guilty of rioting,

being armed with a deadly weapon or with anything which, used as a weapon of
offence, is likely to cause death, shall be punished with imprisonment of either
 description for a term which may extend to three years, or with fine, or with
both.”

It must be noted here, that the penalty as prescribed under this section is more
severe for the reason that the member of such unlawful assembly is armed with
a weapon which leads to the apprehension of causing death. However, in the
event a person is not armed with a deadly weapon but armed with something
which does not cause the threat to life, the provisions of this section cannot be
attracted.

B. Affray

An Affray is said to be committed when two or more person start fighting or

indulge into a scuffle in a public place which eventually causes disturbance to
public peace and tranquillity. There cannot be affray till the second party does
not resist it and/or respond to the assault by the first party. An affray cannot be
committed in a private place. Affray is a cognizable and bailable offence and is
non-compoundable and is triable by the magistrate.

The legal provision for affray is entailed Section 159 IPC. The said section
reads as under:
“When two or more persons, by fighting in a public place, disturb the public
peace, they are said to “commit an affray”.”

There are three important elements to constitute affray are (i) Two or more
persons should fight, (ii) in a public place, (iii) disturbing the public peace.

1. Two or more persons should fight: There cannot be affray if a single person
commits the damage to the public property or threatens the public peace. For an
affray to be committed, there must be actual fight wherein there is exchange of
blows between two or more persons. Mere verbal abuse and threats or usage of
harsh words by two parties in public place does not amount to affray.
2. The conflict must be in a Public place: A public place for this purpose is a place
which has no boundary walls and is open to the public access for amusement or
recreational activities. In the words of Blackstone “Affray is the fighting of two
or more persons in some public place, to be error of His Majesty’s subjects for
if the fighting be in private it is no affray but an assault.”
3. Must disturb the public peace: For affray to be constituted the fight between two
people in a public place must disturb the public peace and tranquility.
The Punishment for affray is mentioned in Section 160 IPC. The said section
reads as follows:
“Whoever commits an affray shall be punished with imprisonment of either
description for a term which may extend to one month, or with fine which may
extend to one hundred rupees, or with both.”

Babu Ram and Anr. vs Emperor[iv]

In this case, a person named Kali Das was attacked by two persons, Babu Ram
and Bhim Singh in public and in self defence Kali Das also attacked on them and
held that there was no offence of affray between Kali Das and other two persons.

Conclusion:
Thus, bare perusal of both the offences makes it clear that although they are part
of the same chapter in IPC, there are though both the offences fall under the
same Chapter, but there exist substantial differences between the two, rioting
being more serious offence than affray. There is requirement of five or more
persons to constitute rioting whereas in affray requires two or more
persons. Unlawful assembly is an essential ingredient of rioting only wherein
each member is made liable. In rioting the use of force and violence is against
the public at large whereas affray requires the fight between two or more
individuals which disturbs public peace and tranquility and the liability is on the
individuals actually engaging in fight . As compared to Affray where offence
has to be committed in public place, a riot can be committed in private or public
place.

Distinction / Difference between Riot and Affray

No Riot Affray

Definition: Definition:

1
 Section 146 of Indian Penal The definition of affray is
Code defines the offence of given in Section 159 (IPC) –
rioting and Section 147
prescribes the punishment
for rioting. “When two or more person,
by fighting in a public place,
disturb the public peace, they
“Whenever force or violence are said to “commit an affray”.
is used by and 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 or Rioting”

Ingredients – Ingredients –

2 To constitute Rioting under To constitute an affray as

Section 146 the following defined in Section 159 there
ingredients must be present must be -
–

1). Fight between two or more

1). There must an unlawful person.
assembly (Section.141)
2) In a public place, and
2) The accused Must be
3) The fight must disturb the
member of such unlawful
public place.
assembly (Section 142)
3) Force or violence must be
used by the said unlawful
assembly or any member
thereof.
3
Riot may be committed in An affray must be committed in
any place public or private. a public place.

4
Riot must be committed by An affray can be committed by
five or more persons. The two or more person the least
least number must be five. number must be two.

5 An Affray is not so much serious

Riot is much serious than
like riot and is punishable with
affray and is punishable with
one month or fine up-to rupees
two years.
hundred

In case of riot every person In case of affray, only those who

6.
of the unlawful assembly are actually engaged are
committing an act is punishable
punishable, although some
of them may not have
personally used force or
violence essential for the
riot.

Punishment -
7.
Section 147 prescribes
punishment for rioting,
Whoever is guilty of rioting,
Punishment -
Section 160 of the Indian Penal
Code prescribes punishment for
affray - Whoever commits an
affray, shall be punished with
shall be punished with
imprisonment of either
description for a term which
may extend to two years or
with fine, or with both.
imprisonment of either
description for a term which may
extend one month, or with fine
which may extend to one
hundred rupees, or both.