Criminal Writ Petition No. 3459 of 2011

31st January, 2012

Petitioner Counsel: Ms.MANJIRI S. PARASNIS
Respondent Counsel: Mr.J.P. YAGNIK, APP, Mr. C.S. DUMRE i/by Mr. D.N. SALVI

Cases Cited:
Union of India Vs. Navin Jindal & Anr., 2004(5) ALL MR 339 (S.C.)=Civil Appeal No.453 of 2004, Dt.23.1.2004 [Para 9]

JUDGMENT

JUDGMENT :- Heard learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the Union of India and the learned APP appearing on behalf of the State.

2. The petitioner has field this petition under Article 226 of the Constitution of India read with provisions of Section 482 of the Code of Criminal Procedure for quashing the F.I.R. which is registered vide C.R.No.1 of 2010, dated 26.1.2010, which was filed at the instance of respondent No.5 and further proceedings arising out of the said F.I.R. being SCC No.150 of 2010 pending in the Court of the Judicial Magistrate, 1st Class, Jat, Dist. Sangli.

3. Brief facts of the case are as under :-

The petitioner is working as Head Master in Zilla Parishad Primary School, Sonlagi (Pandhrewasti), Taluka - Jat. The petitioner states that the flag hoisting programme was held on 26.1.2010 in the school in the morning. In the evening when the petitioner was going to the school for bringing down the flag at the appropriate time, he collapsed and became unconscious and he was admitted in the hospital of Dr.Mhaisale who is the Heart Specialist in Shri Sai Hospital. According to the petitioner, he informed his brother and another teacher to arrange for setting down the flag. He also informed one Shri Kumbhar, the Centre Head, to take the precaution of bringing down the flag before sunset. The petitioner was advised to take rest from 28.1.2010 to 31.1.2010.

4. Respondent No.4 - Police Inspector, Umadi Police Station, Tal. Jat, Dist. Sangli, filed a complaint under Section 2 of the Prevention of Insults to National Honour Act, 1971 (in short, the said Act), in which it was alleged that it was a duty of the petitioner to bring down the flag before sunset and since this was not done he had committed an offence under the said section.

5. According to the petitioner, a show cause notice dated 15.12.2010 was issued by the Primary School Division to the petitioner and he gave his reply on 13.8.2011. The learned counsel appearing on behalf of the petitioner submitted that even if the allegations which are made in the complaint are accepted at their face value, the averments of the F.I.R. do not constitute an offence under Section 2 of the said Act and, therefore, on that ground alone the charge-sheet which is filed under the said F.I.R. is liable to be quashed and set aside. It is further submitted that Code 2.2 and (xi) of the Flag Code of India, 2002 are merely guidelines which are laid down and it is not a statute and, therefore, even assuming that there is a violation of the Flag Code, the said violation does not constitute an offence under the said Act, 1971.

6. We have gone through the averments made in the complaint and we have also perused the Prevention of Insults to National Honour Act, 1971 and the provisions of Flag Code of India, 2002. So far as Section 2 of the said Act of 1971 is concerned, it reads as under :-

"2. Insult to Indian National Flag and Constitution of India. -- Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

Explanation 1 :- Comments expressing disapprobation or criticism of the Constitution or of the Indian national Flag or of any measures of the government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section.

Explanation 2 :- The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made by of any substance or represented on any substance.

Explanation 3 :- The expression "public place" means any place intended for use by, or accessible to, the public and includes any public conveyance.

Explanation 4 :- The disrespect to the Indian National Flag means and includes -

(a) a gross affront or indignity offered to the Indian National Flag; or

(b) dipping the Indian National Flag in salute to any person or thing;

(c) flying the Indian National Flag at half-mast except on occasions on which the Indian National Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or

(d) using the Indian National Flag as a drapery in any form whatsoever except in State funerals or armed forces or other para-military forces funerals; or

(e) using the Indian national Flag as a portion of costume or uniform of any description or embroidering or printing it on cushions, handkerchiefs, napkins or any dress material; or

(f) putting any kind of inscription upon the Indian National Flag; or

(g) using the Indian national Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence Day; or

(h) using the Indian National Flag as covering for a statue or a monument or a speaker's desk or a speaker's platform; or

(i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or

(j) draping the Indian National Flag over the hood, top and sides or back or on a vehicle, train, boat or an aircraft or any other similar object; or

(k) using the Indian National Flag as a covering for a building; or

(l) intentionally displaying the Indian National Flag with the "saffron" down."

7. Explanation 4 mentions various acts of dishonour in clauses (a) to (l). Perusal of the said section clearly reveals that one of the essential ingredients of the said offence is that disrespect, contempt of the flag should be intentional. Similarly, Explanation 4 gives various instances of disrespect to the Indian National Flag. The offence of not lowering down the flag after sunset does not fall either in the various instances which are mentioned in Explanation 4 or in Section 2 of the said Act. The averments in the complaint, therefore, even if they are accepted at its face value, does not constitute an offence within the meaning of Section 2 of the said Act.

8. So far as the Flag Code is concerned, the said Flag Code is not an Act nor is it issued under any of the statutory provisions of the said Act and, therefore, it is not a statutory law enacted by the competent legislature.

9. The Apex Court had occasion to consider whether the Flag Code has any statutory course and in the case of Union of India v/s Navin Jindal & anr., [2004(5) ALL MR 339 (S.C.)] decided on 23.1.2004 in Civil Appeal No.453 of 2004, after going through various sections and parts of the Flag Code, the Apex Court came to the conclusion that the Flag Code contains executive instructions of the Central Government and, therefore, it is not a law within the meaning of Article 13(3)(a) of the Constitution of India. In view of the ratio of the judgment of the Apex Court, therefore, it cannot be said that violation of the instructions which are given in the Flag Code would amount to an offence which is punishable under Section 2 of the said Act.

10. Another factor which also needs to be taken into consideration in the present case is that the petitioner was Head Master of the school and was proceeding to go to his school for lowering down the flag. However, while going to the school, on the way, he collapsed and had to be admitted in the hospital and he had instructed the other person to lower down the flag properly. This is not disputed by the respondent prosecution. This being the position, it cannot be said that the petitioner intentionally wanted to insult the honour of the flag and lastly, complaint appears to have been filed by respondent No.5, a person who was a political opponent of the petitioner and obviously it appears to have been filed with an malafide intention to harass the petitioner. In either case, therefore, the petitioner has made out a good case for quashing the complaint.

11. The writ petition is, therefore, allowed in terms of prayer clauses 19(a), (b) and (c).

12. Writ petition disposed of accordingly.

Petitions allowed