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Madhya Pradesh High Court · body

2016 DIGILAW 286 (MP)

Anand Tiwari v. State of M. P.

2016-04-05

C.V.SIRPURKAR

body2016
ORDER : C.V. Sirpurkar, J. 1. This miscellaneous criminal case under Section 482 of the Cr.P.C. filed on behalf of the complainant, is directed against the order dated 05.11.2015 passed by the Court of 6th ASJ, Rewa in Criminal Revision No.296/2014 affirming the order dated 25.08.2014 passed by the Court of CJM, Rewa, whereby the complaint under Section 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to in this order as 'the Act') was dismissed under Section 203 of the Cr.P.C. 2. The facts necessary for disposal of this miscellaneous criminal case may briefly be stated thus: Complainant Anand Tiwari filed a complaint in the Court of CJM, Rewa stating that he is a public spirited person. Respondent/accused no.3 S.N. Rupla was Collector of District-Rewa. On 26.01.2014, on the occasion of Republic Day, flag hoisting ceremony was organized in the premises of Collectorate, Rewa, wherein the National Flag was unfurled upside down that is to say, the 'Saffron side down'. Thus, on the solemn occasion of the Republic Day, the National Flag was insulted. Respondent no.3 saluted the National Flag, which was in reverse position and thereafter, National Anthem was sung in front of the Flag in such a position. After that, the Flag was pulled down in an insolent manner. Thus , respondent no. 3 intentionally/carelessly performed aforesaid act and thereby insulted the National Flag and the Constitution of India. The Collector is the leader of the Collectorate premises. All acts are conducted in the premises on the orders of and under the protection of the Collector. Therefore, Collector was responsible for unfurling of the Flag in reverse condition and thereby causing insult to the National Flag. 3. In the statements of the complainant Anand Tiwari and his witnesses Mayank Bhushan and Vivek Kumar Mishra, it was stated that when the National Anthem commenced, some people invited attention of the respondent No.3 to the fact that the Flag has been unfurled in saffron side down position; however, respondent No.3 motioned them to keep quite. After the National Anthem was concluded, he directed the staff members to set the Flag right. Thereafter, two of the staff members climbed the roof of the Collectorate. They carelessly and in an insolent manner set the Flag right. After the National Anthem was concluded, he directed the staff members to set the Flag right. Thereafter, two of the staff members climbed the roof of the Collectorate. They carelessly and in an insolent manner set the Flag right. It was further stated that if respondent No.3 wanted, he could have stopped National Anthem midway through and set the Flag right; however, he did not do so, which betrays the fact that the Collector unfurled the Flag in Saffron side down position, intentionally. 4. Learned Chief Judicial Magistrate by order dated 25.08.2014 dismissed the private complaint under Section 203 of the Cr.P.C. holding that there was no ground to proceed further against the respondent No.3. 5. The order dated 25.08.2014 was challenged in Criminal Revision No.296/2014. Learned 6th ASJ, Rewa, placing reliance upon numerous judicial precedents and writing a well-reasoned order, affirmed the order of dismissal passed by the learned CJM and dismissed the criminal revision. 6. By impugned order dated 05.11.2015, learned ASJ held that even if all allegations made in the complaint and the statements recorded under Section 200/202 of the Cr.P.C. are taken at their face value and presume it to be true, there would be no ground hold that the respondent No.3 'intentionally' displayed the Indian National Flag with Saffron side down. It was further held that the National Flag was unfurled by the respondent No.3 in discharge of his official duties. As such, for want of sanction for prosecution under Section 197 of the Cr.P.C., private complaint could not be proceeded with. Learned Additional Sessions Judge was also of the view that this complaint is devoid of substance and was not filed with the intention of ensuring honour to the National Flag but was filed with an eye on attendant publicity; therefore, the order of dismissal passed by the CJM under Section 203 of the Cr.P.C., was affirmed. 7. Learned Additional Sessions Judge was also of the view that this complaint is devoid of substance and was not filed with the intention of ensuring honour to the National Flag but was filed with an eye on attendant publicity; therefore, the order of dismissal passed by the CJM under Section 203 of the Cr.P.C., was affirmed. 7. Undeterred by failure before the two Courts below, the petitioner has ventured to challenge the orders passed by the Courts below invoking inherent powers of the High Court reserved to it under Section 482 of the Cr.P.C. During the course of the arguments, learned counsel for the petitioner contended that it is on record that the attention of the respondent No.3 was drawn by those present, to the fact that the National Flag is flying in reverse position, yet he decided not to take corrective measures immediately and postponed it till the National Anthem was over, which indicates that the National Flag was unfurled with Saffron side down intentionally. 8. Learned Panel Lawyer for the respondent State, on the other hand, has supported the orders passed by the Courts below. 9. Having taken into consideration the relevant material available on record, after duly considering the rival contention and on perusal of Sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971, this Court is of the view that this application under Section 482 of the Cr.P.C. must be dismissed with costs for the reasons hereinafter stated. 10. Before proceeding further, it would be appropriate to take a look at Sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971, which reads as hereunder:- 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 1[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 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 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. 2[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; or (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 3[(e) using the Indian National Flag,' (i) as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; or (ii) by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments 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 statute 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 subject; 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. (Emphasis supplied) 3. Prevention of singing of Indian National Anthem, etc.'Whoever intentionally prevents the singing of the Indian 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. (Emphasis supplied) 3. Prevention of singing of Indian National Anthem, etc.'Whoever intentionally prevents the singing of the Indian 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. 11. In the backdrop of aforesaid provisions, while considering the facts of the case, we find that the petitioner has stated in the complaint that respondent No.3 intentionally/carelessly unfurled the National Flag with Saffron side down. The flag was unfurled in the premises of the Collectorate. Every activity in the Collectorate premises is conducted as per the orders of the respondent No.3; as such, he was responsible for unfurling of the National Flag on a solemn occasion like Republic Day, in a reverse position. In the statements under Section 200 of the Cr.P.C., the petitioner and his witnesses went a step further. They stated that after unfurling the flag, respondent No.3 saluted the flag and thereafter, the National Anthem commenced. After the commencement of the National Anthem, some people in the crowd shouted that the flag was in a reverse position; whereon respondent no.3 motioned them to keep quiet and the Anthem was allowed to be completed. Thereafter, respondent no.3 directed the members of his staff to set the position of the flag right; whereon, two staff members climbed the roof of the Collectorate and carelessly and in a insolent manner set the position of the flag right. 12. First of all, it may be noted that in the complaint, respondent no.3 was held responsible for unfurling the flag top side down only because he was the highest authority in the district and was responsible for all the activities that took place within the premises of the Collectorate. In the complaint, there was no mention either of the fact that after commencement of the National Anthem, some people in the crowd pointed out the error but the respondent No.3 did not immediately take care of the error and allowed National Anthem to be concluded and thereafter, directed the error to be rectified. In complaint, there was no mention of the fact that the staff members of the Collectorate climbed atop the roof and reverse the flag in an insolent manner and thereby exhibited dishonour to the flag. These two sets of averments were improvements upon the original complaint. 13. In complaint, there was no mention of the fact that the staff members of the Collectorate climbed atop the roof and reverse the flag in an insolent manner and thereby exhibited dishonour to the flag. These two sets of averments were improvements upon the original complaint. 13. However, even if we presume all the allegations made either in the complaint and/or in the statements under Section 200 to be true, it may be noted that no case under Section 2 of the Act is made out. The complainant has alleged violation of the Explanation 4 (l) of Section 2 of the Act but under the explanation (l), culpability lies in ' intentionally' displaying the National Flag with Saffron side down. As alleged in the complaint and even otherwise, Collector is the highest authority in the district. He cannot be expected to check beforehand whether the Flag was mounted in correct position. It was the job of one or the other member of his staff. The person who actually mounted the flag on the mast, upside down, has not been sought to be made an accused. Thus, firstly the respondent no. 3 cannot be made vicariously liable for act of such person. 14. Secondly, after unfurling the flag, some people in the crowd are said to have pointed out that the flag was displayed in Saffron side down condition. However, by then, the National Anthem had commenced. If respondent no.3 had stopped the National Anthem midway through in order to correct the position of the flag, he would have committed offence under Section 3 of the Act. On the Republic Day, one mistake of displaying flag Saffron side down, had already occurred. By intentionally causing disturbance to the assembly engaged in singing National Anthem, respondent No.3 would have committed another mistake, which could possibly have amounted to an offence under Section 3 of the Act. Thus, he was placed in proverbial catch 22 situation. In this situation, the respondent no. 3 displayed remarkable presence of mind and took the most appropriate decision. 15. In any case, respondent No.3 did not stand to gain anything by displaying the flag erroneously; therefore, there is absolutely no ground for presuming that he would display the flag in a reverse position, intentionally and thus, would land himself in trouble. 3 displayed remarkable presence of mind and took the most appropriate decision. 15. In any case, respondent No.3 did not stand to gain anything by displaying the flag erroneously; therefore, there is absolutely no ground for presuming that he would display the flag in a reverse position, intentionally and thus, would land himself in trouble. In similar situations, this Court has consistently declined to hold persons in authority/celebrities responsible for unintentional lapses with regard to national honour. In this regard the judgments rendered by this Court in the cases of J.P. Dutta v. Ravi Antroliya, 2010 (1) MPLJ (Cr.) 63, Kantilal Bhuriya v. Sanjaya Sarvariya, 2012 (2) MPLJ (Cr.) 187, Ganeshlal Bathri v. State of M.P., 2003 (3) MPLJ 326 and Amir Khan v. State of M.P., 2009 (2) MPLJ (Cr.) 564 may profitably be referred to. 16. In this situation, no person of common prudence, particularly someone whose personal interests are not affected at all by such lapse, would believe that the Collector of a district would intentionally unfurl the National Flag, saffron side down and jeopardize his carrier and reputation. Yet, the petitioner ventured to make a capital in terms of publicity, out of such unfortunate lapse. In the facts and circumstances of the case, there could be only two motives for such a course of action to adopt. First one is that the petitioner may have a personal axe to grind against the respondent No.3. The second being that he wanted publicity at any cost; therefore, even after failing before two Courts below, he tenaciously pursued the litigation. In either case, ensuring honour to the National Flag was farthest from his mind, which is the object of the Act. In similar circumstances, the Supreme Court has observed in the case of Sanjeev Bhattanagar v. Union of India, (2005) 5 SCC 330 : 17. We are satisfied that the petitioner is not entitled to the relief prayed for. The petition is wholly devoid of any merit. The petition is not in public interest. It is a petition which should never have been filed. It is more of a publicity interest litigation wherein the petitioner seems to have achieved his purpose. To discourage the filing of suchlike petitions which result only in wasting the valuable time of this Court, we direct the petition to be dismissed with costs quantified at Rs 10,000. 18. It is a petition which should never have been filed. It is more of a publicity interest litigation wherein the petitioner seems to have achieved his purpose. To discourage the filing of suchlike petitions which result only in wasting the valuable time of this Court, we direct the petition to be dismissed with costs quantified at Rs 10,000. 18. The present one also appears to be the publicity interest litigation. to discourage the filing of such petitions, which results in wastage of valuable time of the Court, the petitioner needs to be visited with costs. 19. Consequently, this petition under Section 482 of the Cr.P.C. is also dismissed with costs quantified @ Rs.10,000/-.