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Madhya Pradesh High Court · body

2009 DIGILAW 567 (MP)

J. P. DUTTA v. RAVI ANTAROLIA

2009-04-29

N.K.MODY

body2009
Judgment N.K. Mody, J. ( 1. ) This is a petition U/s482 Cr.P.C. for quashment of proceedings of Criminal Case No. 110/04. ( 2. ) Short facts of the case are that the repsondent filed a private complaint against the petitioner U/s2 of Prevention of Insult to National Honour Act, 1971 (which shall be referred hereinafter as an Act) alleging that the petitioner is producer of a film titled as LOC Kargil. It was alleged in the complaint that in the said film the petitioner has exhibited the coffins of the soldiers covered by the National Flag, It was alleged that National Flags were wrongly used for covering the coffins. It was alleged that the act of the petitioner amounts to commit an offence which is punishable U/s2 of the act. It was alleged in the complaint that after taking cognizance of the offence and also after notice, petitioner be convicted. After filing of the complaint and also after recording of statement U/s200 and 202 Cr.P.C. learned Trial Court took cognizance of the offence vide order dated 04/02/04 and issued bailable warrant of, the petitioner, against which the present petition has been filed. ( 3. ) Mr. ZA. Khan, learned senior counsel appearing on behalf of petitioner submits that the impugned order passed by the learned Trial Court is illegal and deserves to be quashed. It is submitted that at the time of shooting of the film one Colonel of army always remained present at the site/location and the entire shooting of the film was picturised under the supervision and guidance of the Colonel of the Army of this Country. It is submitted that the Ministry of defence has issued a certificate to the effect that keeping in view the modifications / deletions suggested by the Army Headquarters and based on the preview of the amended provision held in New Delhi on 05/12/2003 film "Kargil War, 1999" (LOC) has been considered fit for clearance from the Armys image point of view as well as security. It is submitted that the certificate was also issued by the Central Board of Film Certification wherein it was certified that after examination of the film by the members of the Examining Committee on the recommendations of the committee the board hereby certifies that the film is fit for unrestricted public exhibition. It is submitted that the certificate was also issued by the Central Board of Film Certification wherein it was certified that after examination of the film by the members of the Examining Committee on the recommendations of the committee the board hereby certifies that the film is fit for unrestricted public exhibition. Learned counsel further submits that in the Flag there is no scene which may have been considered detrimental or insulting to the National Flag as neither the Army nor the Central Board of Film Certification has pointed out for such act. It is submitted that none of the ingredients have been proved nor any evidence has been produced for constitution of an offence under the act. It is submitted that the petition filed by the petitioner be allowed and the impugned order passed by the learned Court below and the complaint filed by the respondent be quashed. ( 4. ) Mr. MI. Khan, learned counsel for respondent submits that the petition itself is not maintainable. It is submitted that for the same relief earlier also a petition was filed by the petitioner which was numbered as Cr.R.No.595/04 and the same was dismissed. It is submitted that in view of this the petition filed by the petitioner deserves to be dismissed. Learned counsel further submits that after taking into consideration the allegations made in the complaint and the evidence adduced by the respondent, the learned Trial court has taken the cognizance of the offence, which requires no interference. ( 5. ) The Prevention of Insults to National Honour Act, 1971 (Act No.69/1971) has come in force w.e.f23/12/1971. In the statement of objects and reasons it is mentioned that Cases involving deliberate disrespect to National Flag, the National Anthem and the Constitution have come to the notice in the recent past. Some of these incidents were discussed in both the Houses of Parliament and members expressed great anxiety about the disrespect shown to the national symbols. Government were urged to prevent the recurrence of such incidents. Disrespect to the National Flag and the Constitution or the National Anthem is not punishable under the existing law. Public acts of insults to these symbols of sovereignty and the integrity of the nation must be prevented. Hence the Bill. Government were urged to prevent the recurrence of such incidents. Disrespect to the National Flag and the Constitution or the National Anthem is not punishable under the existing law. Public acts of insults to these symbols of sovereignty and the integrity of the nation must be prevented. Hence the Bill. The scope of the law is restricted to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public. It is not intended to prohibit honest and bona fide criticism of the symbols, and express provisions to this effect have been made in the Bill. ( 6. ) Section-2 of the Act reads as under:- Whoever in any public place or in any other place within public view burns, mutilates, defaces, disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or Constitution of India or any part thereof, shall he punished with imprisonment for a term which may extend to three years, or with fine, or with both. ( 7. ) From perusal of the aforesaid sections it is evident that it is no where stated that how the flag has to be used. The offence under the Act can only be constituted if any person within the public view burns, mutilates, defaces, disfigures, destroys, tramples upon or otherwise brings into contempt commits an offence under the Act. ( 8. ) Government of India, Ministry of Home Affairs, New Delhi has published Flag Code of India, 2002, which has come in force w.e.f.26/01/2002. Part-1 of the Code lays down as under:- 1.1. The National Flag shall be a tricolour panel made up for three rectangular panels or sub-panels of equal widths. The colour of the top panel shall be India saffron (Kesari) and that of the. bottom panel shall be India green. The middle panel shall be white, bearing at its center the design of Ashoka Chakra in navy blue colour with 24 equally spaced spokes. The Ashoka Chakra shall preferably be screen printed or otherwise printed or stenciled or suitably embroidered and shall be completely visible on both sides of the Flag in the centre of the white panel. 1.2 The National Flag of India shall be made of hand spun and hand woven wool/cotton/silk Khadi bunting. 1.3 The National Flag shall be rectangular in shape. 1.2 The National Flag of India shall be made of hand spun and hand woven wool/cotton/silk Khadi bunting. 1.3 The National Flag shall be rectangular in shape. The ratio of the length of the height (width) of the Flag shall be 3:2. 1.4 The standard sizes of the National Flag shall be as follows:- 1.5 An appropriate size should be chosen for display. The flags of 450 x 300 mm size are intended for air crafts on WIP flights, 225 x 150 mm size for motor cars and 150 x 100 mm size for table flags. ( 9. ) Section- V of the Code deals with Misuse of the Flag, which reads as under: - 3.22 The Flag shall not be used as a drapery in any form whatsoever except in State/Military/Central Paramilitary Forces funerals hereinafter provided. 3.23 The Flag shall not he draped over the hood, top, sides or back of a vehicle train or boat. 3.24 The Flag shall not be used or stored in such a manner as may damage or soil it. 3.25 When the Flag is in a damaged or soiled condition, it shall not be cast aside or disrespectfully disposed of but shall be destroyed as a whole in private, preferably by burning or by any other method consistent with the dignity of the Flag. 3.26 The Flag shall not be used as a covering for a building. 3.27 The Flag shall not be used as a portion of a costume or uniform of any description. It shall not be embroidered or printed upon cushions, handkerchiefs, napkins or boxes. 3.28 Lettering of any kind shall not be put upon the Flag. 3.29 The Flag shall not be used in any form of advertisement nor shall an advertising sign be fastened to the pole from which the Flag is flown. 3.30 The Flag shall not be used as a receptacle for receiving, delivering, holding or carrying anything: Provided that there shall be no objection to keeping flower petals inside the Flag before it is unfurled, as part of celebrations on special occasions and on National Days like the Republic Day and the Independence Day. ( 10. ) Chapter- XI of the deals with Half- Masting. Clause 3.58 deals with the occasions when the Flag can be used in funerals, which reads as under:- "On occasions of State/Military/Central Para-Military. ( 10. ) Chapter- XI of the deals with Half- Masting. Clause 3.58 deals with the occasions when the Flag can be used in funerals, which reads as under:- "On occasions of State/Military/Central Para-Military. Forces funerals, the Flag shall be draped over the bier or coffin with the saffron towards the head of the bier or coffin. The Flag shall not be lowered into the grave or burnt in the pyre." ( 11. ) Whether the Flag Code of India is law or not has been considered by the Honble Apex Court in the matter of Union of India Vs. Naveen Jindal, Reported in (2004) 2 SCC 510 wherein Honble Apex Court held as under:- In the context of the present case a question arose whether Flag Code is "law"? Flag Code concededly contains the executive instructions of the Central Government. It is stated that for the Ministry of Home Affairs, winch is competent to issue them, the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. A bare perusal of Article 13(3)(a) would clearly go to show that executive instructions would not fall within the aforementioned category. Such executive instructions may have the force of law for some other purposes; as for example, those instructions which are issued as a supplement to the legislative power in terms of clause(l) of Article 77 of the Constitution of India. The necessity as regards determination of the said question has arisen as Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly the National Flag. An executive instruction issued by the appellant herein can any time be replaced by another set of executive instructions and thus deprive Indian citizens from flying National Flag. Furthermore, such a question will also arise in the event if it be held that right to fly the National Flag is a fundamental or a natural right within the meaning of Article 19 of the Constitution of India; as for the purpose of regulating the exercise of right of freedom guaranteed under Articles 19(1) (a) to (e) and (g) a law must be made. Flag Code is not a statute; thereby the fundamental right under Article 19(1) (a) is followed to the extent it provides for preservation of dignity and respect for the National Flag. The right to fly the National Flag is not an absolute right. The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is that the duty to respect the Flag must be strictly obeyed. The pride of a person involved in flying the Flag is the pride to be an Indian and that, thus, in all respects respect to it must be shown. The State may not tolerate even the slightest disrespect. ( 12. ) In the matter of Karan Johar Vs. Union of India. Reported in (2003) 8 SCC 717 wherein this Court directed in public interest litigation that the film Kabhi Kushi Kabhi Gham shall not be shown in any theatre unless the scene which depicts the national anthem is deleted and it was further directed to withdraw the film from all cinema halls and the theatre-owners are restrained from showing the film in its present form and to withdraw the certificate unless deletion is effected, Honble Apex Court also observed that the national anthem exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is rtot expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem; The order passed by this Court was suspended by the Honble Apex Court Vide judgment dated 19/04/04 reported in (2004) 5 SCC127 in the same matter the Honble Apex Court has observed that in view of the instructions issued by the Government of India that the national anthem is exhibited in course of the exhibition of a news reel or documentary, the audience is not expected to stand, as the same would cause disorder and confusion rather than add to the dignity of the National Anthem. The appeal is allowed. ( 13. ) In the matter of Ganesh Lai Bathri Vs. The appeal is allowed. ( 13. ) In the matter of Ganesh Lai Bathri Vs. State of M.P., Reported in 2003 (2) JLJ 296 wherein this Court in a case where there was a bona fide mistake in tying the national Flag in reverse position held that no case for trial is made out and the accused is entitled to be discharged. ( 14. ) From perusal of the photographs of coffins which has been produced by the petitioner from the magazine India Today it appears that the coffins were wrapped by the flag. The saffron side of the flag was used horizontally, while as per Clause 3.58 of the Code it ought to have been vertically towards head side of the coffin. Since the Honble Supreme Court has held in so many words that the flag code is not a statute and the certificate was issued by the Central Board of Film Certification to the petitioner under the Provisions of Cinematography Act, 1952 and complainant does not disclose any of the ingredients of Section 2 of Prevention of Insult to National Honour Act, 1971, this Court is of the view that the learned Trial Court committed error in taking cognizance against the petitioner. It will not be out of place to mentioned that neither in the complaint nor in the evidence adduced by the respondent none of the ingredients of Section 2 of the Act has been pleaded or proved, so that it can be said that, respondent has committed an offence. It is true that the demonstration of the Flag in the said film is not in accordance with clause 3.58 of Chapter XI of the Flag Code of, India, 2002. However since the Flag Code of India is not having force of law and there is nothing on record to show the displaying of the flag was to insult the Flag intentionally, therefore, this Court is of the view that the learned Trial Court committed error in taking cognizance of the offence against the petitioner under the Act. ( 15. ) It is true that earlier also a petition was filed by the petitioner which was numbered as Cr.R.No.595/04 an was decided on 24/03/06 which was disposed of with an observation that learned counsel for the applicant has submitted a letter written by the applicant to Dy. ( 15. ) It is true that earlier also a petition was filed by the petitioner which was numbered as Cr.R.No.595/04 an was decided on 24/03/06 which was disposed of with an observation that learned counsel for the applicant has submitted a letter written by the applicant to Dy. S.P., APTC, Indore (MP)/complainant/ non-applicant wherein petitioner has expressed his sincere and heartfelt apology. The same is on record. It was also observed by this Court that in view of the aforesaid amicable settlement between applicant and non-applicant, applicant wants to withdraw the revision, therefore, the same is dismissed as withdrawn. This order shall not come in the way of the petitioner because it appears that there were some understanding between the parties and after submission of apology it was expected from the respondent to withdraw the petition. Since the prosecution was not withdrawn and the petition was dismissed as withdrawn, therefore, the present petition can not be dismissed on the ground that the earlier petition was dismissed by this Court. On the contrary it is a fit case in which this Court shall exercise powers conferred U/s482,-Xr.P.G. to save the petitioner from abuse of process who has produced a national! film. ( 16. ) in view of this petition filed by the petitioner is allowed and the impugned order passed by the learned Trial Court whereby the cognizance was taken and the complaint bearing No. 110/04 pending in the Court of JMFC, Indore stands quashed. With the aforesaid observations, petition stands disposed of. Petition disposed of.