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Madhya Pradesh High Court · body

2009 DIGILAW 911 (MP)

Aamir Khan s/o Tahir Hussain v. State of M. P.

2009-08-03

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. This is a petition under section 482 of the Criminal Procedure Code for quashment of the order dated 27-9-2007 and Criminal Complaint No. 33932/07 whereby the cognizance was taken by the learned JMFC, Indore under sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971 Clauses (2), (3), (4), (5), (7), (8), (11), (12) of section 2(B)(5), (10) and Clauses 3.5, 3.7, 3.90 and 9.13 of section 3 and Clause 3.24, 3.25, 3.27 of section 5, Clause 3.31 of section 6 and clause 3.57 of section 11 Flag Code of India 2002 and section 109 of the Indian Penal Code. 2. Short facts of the case are that the respondent No. 2 Shailendra Sharma filed a private complaint on 22-9-2007 before the learned Court below alleging that on 16-8-2007 a programme was arranged by accused Rakesh Rajpal and Ashok Rajpal at their premises M/s Rajpal Abhikaran Private Limited, dealers of Toyota vehicles and in that programme petitioner was invited as guest, who was suppose to give keys of Innova Cars to the persons who have purchased the same. In the complaint it was alleged that in the business campus of M/s Rajpal Abhikaran Pvt. Ltd. wherein the said programme was arranged, some National Flags were hoisted. It was alleged that even after the sunset, the National Flags continued to fly in the premises. It was alleged that in the said function higher authorities of the police department were also present. It was further alleged that there was a huge gathering in the function and when the fact was brought to the notice to the accused Rakesh Rajpal and Ashok Rajpal, than the National Flags were pull down in a disrespectful and insulting manner. It was alleged in the complaint that to allow to fly the flag after the sunset and to pull down the same in disrespectful manner amounts to an offence. In the complaint it is further alleged that news in that regard was flashed in the news papers dated 17-8-2007. It was alleged that the petitioner who is a film hero and was the brand ambassador of Toyota, who was present as chief guest has also committed the alleged offence. It was prayed that after taking cognizance of the offence the petitioner and other accused persons be noticed and after recording of evidence they be convicted. 3. It was alleged that the petitioner who is a film hero and was the brand ambassador of Toyota, who was present as chief guest has also committed the alleged offence. It was prayed that after taking cognizance of the offence the petitioner and other accused persons be noticed and after recording of evidence they be convicted. 3. In support of the complaint respondent No. 2 Shailendra Sharma examined himself under sections 200 and 202 Criminal Procedure Code as AW/1 and also examined Arvind Sharma as AW/2. Upon the complaint vide order dated 27-9-2007 the learned trial Court took the cognizance of the offence and issued bailable warrant, hence this petition. 4. Learned senior counsel for the petitioner argued at length and submits that the complaint filed by the respondent No. 2 against the petitioner deserves to be quashed as no offence is made out against the petitioner. 5. Section 2 of the Prevention to National Honour Act, 1971 reads as under:- 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 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. 6. Relevant provisions of Flag Code of India, 2002 for which the cognizance has been taken reads as under:- 2.2 A member of public, a private organization or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise. Consistent with the dignity and honour of the National Flag - (ii) a damaged or dishevelled Flag should not be displayed. Consistent with the dignity and honour of the National Flag - (ii) a damaged or dishevelled Flag should not be displayed. (iii) the Flag should not be flown from a single masthead simultaneously with any other flag or flags; (iv) the Flag should not be flown on any vehicle except in accordance with the provisions contained in section IX of Part III of this Code; (v) when the Flag is displayed on a speaker's platform, it should be flown on the speaker's right as he faces the audience or flat against the wall, above and behind the speaker; (vi) when the Flag is displayed flat and horizontal on a wall, the saffron band should be upper most and when displayed vertically, the saffron band shall be on the right with reference to the Flag (i.e.,left to the person facing the Flag); (vii) to the extent possible, the Flag should conform to the specifications prescribed in Part I of this Code; (viii) no other flag or bunting should be placed higher than or above or side by side with the National Flag; nor should any object including flowers or garlands or emblem be placed on or above the Flag-mast from which the Flag is flown; (ix) the Flag should not be used as a festoon, rosette or bunting or in any other manner for decoration; (x) the Flag made of paper may be waved by public on occasions of important national, cultural and sports events. However, such paper Flags should not be discarded or thrown on the ground after the event. As far as possible, it should be disposed of in private consistent with the dignity of the Flag; (xi) where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions; (xii) the Flag should not be displayed or fastened in any manner as may damage it; (xiii) when the Flag is in a damaged or soiled condition, it shall be destroyed as a whole in private, preferably by burning or by any other method consistent with the dignity of the Flag; 7. Section 109 of Indian Penal Code reads as under: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by that code for the punishment of such abetment be punished with the punishment provided for the offence. 8. In support of the complaint the respondent No. 2 has filed the cuttings of the News Paper Prabhat Kiran dated 17-8-2007 wherein news was published under the head line . In the News Paper Choutha Sansar dated 17-8-2007 news was published under the head line In the news paper News Today dated 17-8-2007 news was flashed under the head line . 9. Apart from this respondent No. 2 has also submitted the photographs, video cassettes and has examined himself as AW/1 and Arvind Sharma as AW/2. In the statement which was given by the petitioner before the Court under sections 200 and 202 Criminal Procedure Code respondent No. 2 has stated that even in the night hours the National Flags were flurrying. Complainant has further stated that complainant opposed the action to the organizers. He has further stated that upon his agitation Ashok Rajpal and Rakesh Rajpal along with the petitioner directed to remove the flags. AW/2 Arvind Sharma has stated that in the said function petitioner was also present. Except this evidence there is absolutely no evidence against the petitioner. Respondent No. 2 has also filed the video cassettes of the programme in which also there is no role of the petitioner. 10. So far as Flag Code is concerned, in the matter of Union of India vs. Naveen Jindal, AIR 2004 SC 1559 Hon'ble Supreme Court has held that the Flag Code is not a statute and cannot regulate fundamental right to fly National Flag. In the matter of State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335 Hon'ble Apex Court has given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice and held that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. 1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can everreach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 11. In the matter of Chunduru Siva Ram Krishna vs. Peddi Ravindra Babu, 2009(4) SCALE 685 Hon'ble Apex Court held that the principle that could be culled out is that when at an initial stage a prosecution is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. It is also for the Court to take into consideration any special feature that may appear in a particular case while considering whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose. In the matter of Sundar Babu vs. State of Tamil Nadu, 2009(5) SCALE 1 Hon'ble Apex Court held that though the scope for interference while exercising jurisdiction under section 482 Criminal Procedure Code is limited, but it can be made in cases to prevent abuse of the process of Code. 12. As per the complainant himself who is respondent herein the petitioner was the chief-guest of the function while other accused persons were organizer. Either in the complaint or in the evidence oral or documentary adduced by the respondent No. 2, nothing has been stated against the petitioner except the fact that the petitioner was present in the said function. Since prima facie there is no evidence to prove that petitioner has caused insult to the National Flag, the learned Court below committed error in passing the impugned order whereby cognizance of the alleged offence was taken against the petitioner. In view of this petition filed by the petitioner is allowed and the impugned order whereby the cognizance has been taken against the petitioner stands quashed to that extent. With the aforesaid observations, petition stands disposed of.