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Madhya Pradesh High Court · body

2020 DIGILAW 1273 (MP)

Brajesh Bansal v. State of M. P.

2020-12-16

SHEEL NAGU

body2020
ORDER 1. Inherent powers of this Court u/S.482 CrPC are invoked seeking quashment of FIR dated 16.8.2019 bearing Crime No. 504/2019 registered at Police Station Kailaras, District Morena alleging offences punishable u/Ss.2 and 3 of the Prevention of Insults to National Honour Act, 1971 against both the petitioners. 2. The skeletal facts attending the present case are that at the relevant point of time petitioner No.2 was the elected President of Nagar Panchayat Kailaras, District Morena. It is alleged in the FIR that on the Independence Day i.e. 15.8.2019, petitioner No.2 along with her husband-petitioner No.1 had hoisted the National Flag which continued to remain hoisted till 9:15 pm of 16.8.2019 and as such intentionally insulted the National Flag. FIR further alleges this incident of insult to National Flag was witnessed by Satendra Singh, Omkar Dubey, Pradeep Ghuraiya, Suresh Upadhyay, Narhari Sharma and Arun Kumar. Offence punishable u/S.2 r/w 3 of the Prevention of Insults to National Honour Act, 1971 (for brevity, “1971 Act”) is alleged. 3. Learned counsel for petitioners has submitted that even if the allegations contained in the FIR are treated to be true, they do not constitute any offence as alleged. Learned counsel for petitioners has relied upon various judgment of apex Court in State of Haryana and others v. Bhajanlal and others [1992 Supp (1) SCC 335] Union of India v. Naveen Jindal and another [ (2004)2 SCC 510 ] Ganesh Lal Bathri v. State of M.P. [ 2003(2) JLJ 296 ], Amgonda Vithoba Pandhare v. Union of India : LAWS (BOM), (2012) 1 138, Umesh Kishanrao Chopde v. State of Maharashtra and Anr., 2012 CrLJ 3142 and the Single Bench decision of this Court rendered at Indore Bench in MCrC. No.5230/2012 (Dr. Vikram Dutta v. State of M.P. and Anr.) decided on 25.1.2018, in which the abovementioned judgments have been relied upon. 4. To effectively adjudicate the issue involved, this Court reproduces the relevant provision of sections 2 and 3 of 1971 Act as below :- “2. Insult to Indian National Flag and Constitution of India. No.5230/2012 (Dr. Vikram Dutta v. State of M.P. and Anr.) decided on 25.1.2018, in which the abovementioned judgments have been relied upon. 4. To effectively adjudicate the issue involved, this Court reproduces the relevant provision of sections 2 and 3 of 1971 Act as below :- “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 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 re- presentation 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 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.” 4.1 Section 2 attracts punishment of imprisonment for a term of three years or with fine or both when a person is found in public place within public view burning mutilating, defacing, defiling, disfiguring, destroying, trampling upon or bringing or otherwise bringing into contempt by words spoken or written or by act begin the Indian National Flag. Allegation against petitioners is of leaving National Flag at hoisted position even during the night i.e. between sunset and sunrise. This act of petitioners does not squarely fall within section 2 of 1971 Act. Allegation against petitioners is of leaving National Flag at hoisted position even during the night i.e. between sunset and sunrise. This act of petitioners does not squarely fall within section 2 of 1971 Act. So far as the act of petitioners amounting to contempt of Indian National Flag is concerned, the expression “contempt” is required to be interpreted by drawing colour and inspiration from the expression “burn, mutilate, deface, defile, disfigure, destroy, trample” found in section 2 of 1971 Act. Thus, the act of leaving the National Flag in hoisted position even after sunset may be an act of advertent or inadvertent forgetfulness by stretch of imagination can be termed as contemptuous unless it is shown that hoisting and flying the National Flag between sunset and sunrise is expressly prescribed as an offence in specific terms. 5. Pausing here for a moment, the fundamental rule of interpretation of penal provision is required to restated. Every penal provision is to be interpreted strictly. Meaning thereby that the offence for which the penal provision has been made ought to be stated clearly and unambiguously in express terms. If an act does not fall within the four corners of the offence described by the statute and even if it falls within the grey area where a possible interpretation of act not being an offence can possibly be made, then the said act cannot suffer rigors of penal provision. 6. This Court is bolstered in its view by the decision of apex Court in R. Kalyani v. Janak C. Mehta and Ors [ (2009) 1 SCC 516 ], relevant paras 37, 38 and 39 are reproduced below for ready reference and convenience :- “37. Maxwell in The Interpretation of Statutes (12th Edn) says: "The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction." 38. In Craies and Statute Law (7th Edn. At p. 529) it is said that penal statutes must be construed strictly. In Craies and Statute Law (7th Edn. At p. 529) it is said that penal statutes must be construed strictly. At page 530 of the said treatise, referring to U.S. v. Wiltberger, [(1820) 2 Wheat (US) 76], it is observed, thus : "The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment." 39. In Tuck & Sons v. Priester, [(1887)] 19 QBD 629] which is followed in London and County Commercial Properties Investments v. Attn Gen., [(1953) 1 WLR 312], it is stated: "We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive." 7. Taking queue from the principle of interpretation of statute it is obvious that the act of leaving the National Flag at hoisted position between sunset and sunrise does not satisfy the ingredients which constitute the offence punishable u/S.2 of 1971 Act. 8. Learned counsel for respondents has attempted to seek assistance of the Indian Flag Code, 2002 (for brevity, “Flag Code”) in particular Clause of section 2(2.2)(xi) of Flag Code, learned counsel submits that in particular Clause under the said Flag Code allowing National Flag to remain hoisted between sunset and sunrise is prohibited. As such it is urged that if provision of section 2 of 1971 Act is read in conjunction with the said clause of Flag Code, then petitioners have prima facie committed the offence punishable u/S.2 of 1971 Act. 9. As such it is urged that if provision of section 2 of 1971 Act is read in conjunction with the said clause of Flag Code, then petitioners have prima facie committed the offence punishable u/S.2 of 1971 Act. 9. The relevant clause of the Indian Flag Code, 2002 is reproduced below for ready reference and convenience :- “2 (2.2)(xi)- Where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions.” 10. It is not in dispute that the said Flag Code is not “law” as defined in Article 13 of Constitution of India and is a mere compendium of executive instructions as held by the apex Court in Union of India v. Naveen Jindal and another [ (2004) 2 SCC 510 ], the relevant extract of which is reproduced below for ready reference and convenience :- “28. Before we proceed further, it is necessary to deal with the question, whether Flag Code is "law"? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue 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. The question, however, is as to whether the said executive instruction is "law" within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India reads thus : "13. (3) (a) "Law" includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law." 29. A bare perusal of the said provision 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 (1) of Article 77 of the Constitution of India. 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 (1) of Article 77 of the Constitution of India. The necessity as regard determination of the said question has arisen as the Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly a 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 Article 19(1)(a) to (e) and (g) a law must be made.” 11. As such since the Flag Code does not have any statutory force it cannot attract any offence. Besides, the Flag Code lays down that as far as possible National Flag should be flown between sunrise and sunset. Meaning thereby that it should not be flown between sunset and sunrise. Use of expression "as far as possible" in the said clause of Flag Code, which is a mere instruction, is sufficient for this Court to conclude that flying of National Flag between sunset and sunrise is not prohibited by law. 12. This Court at this juncture may hasten to add that such a conduct of allowing the National Flag to remain hoisted between sunset and sunrise may become subject matter of misconduct but not an offence. 13. Section 3 of 1971 Act alleged in impugned FIR has no application to the fact situation herein. 14. In view of above discussion, it is obvious that FIR lodged against petitioners do not attract offences punishable u/Ss.2 and 3 of 1971 Act as alleged. 13. Section 3 of 1971 Act alleged in impugned FIR has no application to the fact situation herein. 14. In view of above discussion, it is obvious that FIR lodged against petitioners do not attract offences punishable u/Ss.2 and 3 of 1971 Act as alleged. FIR seems to be motivated by extraneous consideration and therefore, this Court has no hesitation to hold that if the said prosecution triggered by the impugned FIR is allowed to subsist, then injustice would occasion which would amount to abuse of process of the Court, and thus, to secure the ends of justice, this Court deems it appropriate to interfere in the matter by invoking inherent powers of the Court u/S.482 of CrPC. 15. Consequently, present MCrC stands allowed in the following terms :- 1. FIR dated 16.8.2019 bearing Crime No.504/2019 registered at Police Station Kailaras, District Morena alleging offences punishable u/Ss.2 and 3 of the Prevention of Insult of National Honour Act, 1971 and all its subsequent proceedings stand quashed. 2. Petitioners are entitled to cost of this litigation which is quantified at Rs.5,000/- (Rupees Five Thousand Only) which shall be paid by the State, for having launched this avoidable prosecution against petitioners by transferring the said amount by digital transfer in bank account of petitioners within a period of one month from the date of issuance of this order and file compliance report in Registry of this Court within a month thereafter, failing which Registry is directed to list this case as PUD for execution. 3. The State is further saddled with cost of Rs.5,000/- (Rupees Five Thousand Only) for having wasted the precious time of this Court in adjudicating this avoidable piece of litigation. The cost be deposited with the Registry of this Court in favour of Legal Aid Cell within a month thereafter, failing which Registry is directed to list this case as PUD for execution. Vivek Khedkar for applicants; Vinay Kumar, Panel Lawyer for respondents/State.