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Madhya Pradesh High Court · body

2002 DIGILAW 862 (MP)

Publisher, India Today v. Girish Sharma

2002-09-13

P.C.AGARWAL

body2002
JUDGMENT In 21.3.1997 to 5.4.1997 number of India Today, advertisement for Amul Butter Megabytes was published. It had in bold letters the caption· "India Gates, a caricature of Bill gates was shown presenting laptop to Shri Devegowda, the then Prime Minister, who with a child had in their hands Amul Products with a flower garland to offer. Behind Shri Devegowda, some girl child was shown holding two flags. As per respondent No.1 these flags represented Indian National Flag and flag of USA. Respondent No. 1 preferred criminal complaint under S. 2 of the Prevention of lnsults to National Honour Act, 1971 ('Act' for short). The Judicial Magistrate by impugned order dated 17.2.1997 took cognizance of the matter under S. 2 the Act and issued summons to the petitioner which were sent by registered post. Lateron he insisted on personal presence of the petitioner in Court. As per complainant Indian National Flag could not be used for the purpose of business or commerce for financial gain, advertisement. Complainant had felt dishonour and. insult of Indian National flag. Thus, this complaint was filed as a vigilant citizen of India. Complainant is a young advocate. Grievance of the petitioner has been that no offence was made out under the Act and secondly personal presence of the petitioner could not be insisted upon. Scope of power of High Court under S.482 of the Code to quash a complaint or FIR are well settled in State of Harayana v. Bhajanalal (1992 SCC Cri. 426). Categories of cases are cited by way of illustration. Third category stated in following words is apposite in this case: "Where uncontroverted allegations made in FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and makes out a case against the accused. " Of course, such power should be exercised sparingly in rarest of rare cases to prevent abuse of the process of the Court or to check miscarriage of justice. Such powers can be used to save the petitioner from unnecessary and futile exercise and agony of facing a criminal trial. "Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR 1998 SCC Cri 1400). In case allegations in complaint, statement of complainant and witnesses on their face value do not disclose any offence, complaint should be quashed. Ashok Chakravarty v. Sheetul H. Chanchani (AIR 1998 SCC Cri 1704). "Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR 1998 SCC Cri 1400). In case allegations in complaint, statement of complainant and witnesses on their face value do not disclose any offence, complaint should be quashed. Ashok Chakravarty v. Sheetul H. Chanchani (AIR 1998 SCC Cri 1704). If no prima facie case is made out continuing the criminal complaint may amount to abuse of the process of Court. Hriday Ranjan Pd. Verma v. State of Bihar [(2000) SCC Cri 786]. Such power has to be exercised to do real and substantial justice. Dinesh Dutt Joshi v. State of Rajasthan [2002 SCC (Cri) 24]. In case no offence is made out, it is an error issuing process if ingredients of offence are not satisfied. S. W. Falanidkar v. State of Bihar (2002 SCC Cri 129). Power could be used to avoid needless multiciplicity of procedure, unnecessary delay in trial and protraction of proceedings, failure of justice or misuse of judicial mechanism or procedure. It is a salutary duty of the High Court to prevent abuse of process or miscarriage of justice or to correct irregularities or incorrectness. Krishnan v. Krishnaveni [1997 SCC (Cri) 544]. Any how, in Constocom Electronic.fi (I) Pvt. Ltd. v. Gilt Pack Ltd [(2002) SCC Cri 336], the Supreme Court disapproved sending the case again to the Magistrate who had heard and decided the objections raised by the petitioner against him as the same would have been a futile exercise. The supreme Court had discouraged to send the petitioner to the Courts below when a relief could be granted in the High Court itself. Pepsi Foods Ltd. v. Special Judicial Magistrate [1998 SCC Cri 1400]. To decide present controversy it is useful to cite S. 2 of the Act in full : Insult to Indian national Flag and Constitution of India - whoever in any public place or in any other place within public view bums, 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' 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 of any substance or represented on any substance. Explanation 3 -- The expression "public place means any place intended for use by, accesible to, the public and includes any public conveyance. Obviously, no insult was caused or intended by the petitioner. It was not a case of burning, mutilation, defacement, defilement, disfigurement, destroyment, trampling upon or otherise bringing into contempt. Last words have to be construed in ejusdem generis. They gain colour from association. Bringing into contempt must be of similar kind as contemplated in the rest part of the clause. Bona fide use of the same in an advertisement may not amount to any insult or contempt. In no way any ulterior motive or innuendo can be interpreted out of the same. The main contention of the respondent No.1 has been that the sign of national flag was used for the commercial purpose. Clause 8 of S. 5 of Indian Flag Code has been pressed into service by him which prohibits use of flag for any advertisement nor any advertisement could be affixed to the same rod on which flag is flurred. Note appended to the same prohibits use of flag in any business, commerce or profession or as a part of patent or trademark or its design without previous sanction of the Central Government. Anyhow, in the present case Indian National Flag is not so used. A small figure of flag in the hand of the girl child has three divisions in it. Anyhow, colour scheme of the flag has not been adopted. Chakrasign is not there in the same. Figure is not exact. No actual flag is used for advertisement. No advertisement is affixed to the rod of the flag. Figure has not been used in any insulting manner. Such figure is used only to denote that the product is Indian. Anyhow, colour scheme of the flag has not been adopted. Chakrasign is not there in the same. Figure is not exact. No actual flag is used for advertisement. No advertisement is affixed to the rod of the flag. Figure has not been used in any insulting manner. Such figure is used only to denote that the product is Indian. It promotes amity and friendship between Indian Nation and USA Nation. In no way, the same is subversive to the dignity of the National Flag. Thus, from the material on record, no offence under S. 2 of the Act is made out. Furthermore, the case is registered against the publisher of the magazine. Specific name of the person is not given. Though it is necessary to know the name of person accused before taking cognizance as held in Ram Pal v. State of Rajasthan (1998 Cr. LJ 3261). Argument of respondent No. 1 that he has proceeded against a corporation is also misconcieved as the complaint was not against any corporation. Reference to S. 63 of the Code was also misplaced and misconcieved. On the whole, it is a fit case in which inherent powers of the High Court should be used. Hence, complaint is hereby quashed as being baseless and without substance. Petition allowed.