JUDGMENT
S.C. Parija, J.
1. This application under Section 482 Cr.P.C. has been filed by the petitioners challenging the order dated 19.06.2006 passed by the learned S.D.J.M.(S), Cuttack in G.R. Case No. 550 of 2006, taking cognizance against the petitioner under Section 160 I.P.C.
The learned Counsel for the petitioners submits that neither the allegations made in the F.I.R. nor the statements of witnesses recorded under Section 161 Cr.P.C. during investigation reveal that there was any fight so as to constitute the offence of ‘affray’, as required under Section 160 I.P.C. and therefore, the initiation of criminal proceeding against them should be quashed. The petitioners further submit that the petitioner No. 2 is a school teacher and the petitioner No. 1 is a respected person of the society and the continuance of the criminal proceeding is baund to cause harassment and serious prejudice to them.
2. The brief fact of the case is that a divorce case bearing C.P. No. 787 of 2005 was pending before the learned Judge, Family Court, Cuttack between Sri Himansu Sekhar Sahoo and Smt. Minatibala Sahoo. The present petitioner had gone there along with Smt. Minatibala Sahoo to pursue Sri Himansu Sekhar Sahoo to drop the proceeding and for restitution of conjugal life. During the course of discussion Sri Himansu Sekhar Sahoo reacted violently and abused the petitioners and even though the petitioners tried to calm him down and persuade him to settle the matter amicably, Sri Himansu Sekhar Sahoo shouted for which, police came and arrested him along with the petitioners and a case under Section 160 I.P.C. was registered and the petitioners have subsequently been released on bail.
3. Learned counsel for the petitioners specifically submits that in order to constitute an offence of ‘affray’, there must be fight between two sides, which is a essential ingredient. Mere shouting between the parties would not constitute an offence of ‘affray’ under Section 159 I.P.C. Section 159 I.P.C. which defines the offence ‘affray’, reads as follows:
When two or more persons, by fighting in a public place, disturb the peace, they are said to commit an affray.
4. Learned counsel for the petitioners relies on a decision in the case of In re Ramakudumban and Ors. reported in A.I.R. (37) 1950 Madras 408, which lays down that in order to constitute affray fight between two sides is essential. Mere passive submission to beating by the other side or shouting in a public place will not constitute an offence of affray. Where a person beats another in a public place and the latter submits to the beating without the least retaliation and simply howls in pain, no offence of affray is committed, unless there is fighting in public place disturbing public peace.
5. Considering the nature of allegation made in the F.I.R. and the statements of witnesses recorded under Section 161 Cr.P.C. during investigation, I find that there is no allegation of fight having taken place so as to constitute the offence of ‘affray’ as defined under Section 159 I.P.C.
6. Hence keeping in view the nature of offence alleged, no useful purpose would be served by allowing the criminal proceeding to continue against the petitioners, especially when, the ultimate chance of conviction is bleak. For the ends of justice and in order to prevent abuse of the process of Court, the order of cognizance dated 19.06.2006 passed by the learned S.D.J.M. (S), Cuttack in G.R. Case No. 550 of 2006 and the subsequent criminal proceeding are hereby quashed.
The CRLMC is accordingly allowed.