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Madhya Pradesh High Court · body

2002 DIGILAW 1028 (MP)

Ganesh Lal Bathri v. State of M. P.

2002-11-19

UMA NATH SINGH

body2002
ORDER (Oral) 1. This criminal revision impugns the order dated 8.2.2002 passed by learned Judicial Magistrate First Class, Seoni in Criminal Trial No. 432/99, framing charges under sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971 (for short 'the Act'). 2. It is said that the complainant being a Sarpanch and the accused-applicant being the Principal of a Government High School, were on inimical terms over hoisting of the National Flag on 26.1.1999. It is also said that the issue was resolved and it Was decided that the complainant would hoist the flag on the Republic Day in the premises of the school. It is also said that inadvertently, the flag was tied in reverse order by putting saffron colour down by a lower staff of the school and the moment it came to the notice of the accused, the flag was put in order and the matter ended. However, the complainant lodged a report with police which was registered as Rojnamacha Sanha No. 600 dated 26.1.1999 at Police Station Ugali alleging that the flag was tied in improper manner for hoisting. After a preliminary enquiry, an FIR was registered against the applicant after 3 months on 9.4.1999. On an investigation, a charge-sheet was filed and the accused-applicant has been put up for trial upon charges under sections 2 and 3 of the Act. 3. Learned counsel for the applicant submits that looking to statements and objects of the Act, so also the provisions of sections 2 and 3, materials on record prima facie do not attract the ingredients of the offences as above. Learned counsel further submits that the most important element for such prosecution is the presence of disrespect for the National Flag which is conspicuous by absence in the instant case. Learned counsel further submits that specific acts which may lead to a conclusion of disrespect to the National Flag are 'burning, trampling defiling or mutilating in public. He also submits that the flag was hoisted at a place which is not located within the precincts of the Government High 'School where the applicant-accused is employed as the Principal. Learned counsel also submits that the applicant being a Principal of Government High School, is entitled to get protection under section 197, CrPC against his prosecution. 4. On the other hand, Shri Ajay Mishra, learned Dy. Learned counsel also submits that the applicant being a Principal of Government High School, is entitled to get protection under section 197, CrPC against his prosecution. 4. On the other hand, Shri Ajay Mishra, learned Dy. Advocate General assisting the Court fairly submits that from a reading of the provisions of sections 2 and 3 of the Act so also on a careful scrutiny of materials on record, charges in question are not made out. Learned Dy. Advocate General, further submits that at the most, the act of tying the flag can be said to be an improper act and it cannot be presumed to be a deliberate act of undermining the' sovereignty of the Nation. Learned Dy. Advocate General further submits that the Government of Madhya Pradesh in pursuance of a Flag Code published by the Government of India, Ministry of Home Affairs, has issued a circular that putting saffron colour of the flag down and hoisting it in that manner would amount to an incorrect display of the flag. According to him, it does not give rise to a criminal liability. He further submits that the meaning of contempt as given in the Black's .Law Dictionary does not include an improper act and it reads as : "A willful disregard or disobedience of a public authority." Learned Dy. Advocate General also submits that though the applicant has been put on trial under an inclusive clause of section 2 as : "or otherwise brings into contempt (whether by words, either spoken or written, or by acts)", yet this clause being general in nature, in the absence of a mens rea, does not constitute the ingredients of offences charged with. 5. On a due consideration, in the absence of materials on record in terms of sections 2 and 3 of the Act, trial of the applicant upon charges as such would be a trial in void. Section 2 and 3 of the Act on reproduction read as under : 2. 5. On a due consideration, in the absence of materials on record in terms of sections 2 and 3 of the Act, trial of the applicant upon charges as such would be a trial in void. Section 2 and 3 of the Act on reproduction read as under : 2. Insult to Indian National Flag arid 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 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 India 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 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. 3. Prevention of Singing of India National Anthem, etc. -- Whoever intentionally prevents the singing of the India National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both." Further, the relevant portion of the Flag Code - India being 4.6 in section IV (Incorrect Display) on reproduction reads as under: 4.6 -- The flag shall not be displayed with the "Saffron" down. 6. From a perusal of the relevant provisions of the Act so also the Code and on a careful scrutiny of materials on record, it is clear that there is a dearth of materials to show an intention or mens rea to disrespect the National Flag and thereby to undermine the sovereignty of Nation. The applicant was working as the Principal of a Govt. The applicant was working as the Principal of a Govt. High School and being the in charge could hoist the flag but since the complainant was authorized to do so, the applicant could not have played any mischief, unless there is a positive material to the contrary, in tying the flag in reverse order through a lower staff to show down the complainant. Further the moment it was noticed that the saffron colour was down, the flag was immediately tied in proper order as per the Code. From the FIR itself it is obvious that the complainant, being a Sarpanch, was inimically disposed towards the applicant over hoisting the flag. Moreover, the Rojnamacha Sanha No. 600 registered at police station Ugali, dated 26.1.1999 only speaks about an irregularity in hoisting the flag by putting it in reverse order Further, the flag was hoisted not within the premises of Government High School as per spot map but within the precincts where other schools are also housed. In addition to that, the inclusive clause of section 2 or otherwise brings into contempt' cannot be stretched that far as to include acts in question which are absolutely devoid of elements of mens rea or disrespect and thus fall outside the definition of contempt as given in Black's Dictionary. Similarly the applicant cannot be sent up for trial on account of vicarious liability on the basis of an omnibus statement made by the complainant. The applicant might be under a bona fide belief that a lower staff who had been tying the flag for years would again tie it in proper order and 'thus the applicant cannot be made to suffer a trial upon the charges which are not disclosed from the materials on record. 7. Under the circumstances, from the materials on record, no offences under sections 2 and 3 of the Act are made out. Accordingly, the order passed by learned Judicial Magistrate First Class Seoni dated 8.2.2002 is hereby set aside and the charges framed there under are hereby quashed. Thus, the criminal revision succeeds. C.C. as per rules.