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2025 DIGILAW 1813 (KER)

Dipu Jacob, S/O K. L Jacob v. State of Kerala

2025-07-03

BECHU KURIAN THOMAS

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ORDER : BECHU KURIAN THOMAS, J. This bail application is filed under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’). 2. Petitioner is the accused in Crime No.226 of 2025 of Udayamperoor Police Station, Ernakulam, registered for the offences punishable under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 [for short, ‘the BNS’] and Section 2 of the Prevention of Insults to National Honour Act, 1971 [for short, ‘the National Honour Act’]. 3. According to the prosecution, the accused, with an intention to promote disharmony, enmity, hatred and ill-will between different communal and political organisations, had kept the Indian Flag near the bathroom of an auditorium by name ‘Jesus Generation’ and also displayed the Indian Flag along with the Pakistan Flag and conducted a religious service and thereby committed the offences alleged. 4. Sri.Rajesh Kumar T.K., the learned counsel for the petitioner submitted that the allegations are false and the said incident has been misinterpreted by the complainant with some ulterior motives. According to the learned Counsel, petitioner is the owner of an auditorium, where prayers were conducted by the Pentecostal community, in a 40 day fasting and worship programme organised for the children in connection with the new academic year. The prayers also intended to focus on peace, harmony and brotherhood amongst various nations and 20 random countries were selected, whose flags were displayed. The learned Counsel pointed out that, after the prayer programme was completed, the different flags were collected and kept on the side to make way for a marriage programme and it was at that juncture that the complaint was filed alleging that the flags were kept near the bathroom. It was also submitted that there was no attempt to insult or show disrespect or even to promote any hatred or enmity between any community or religious or political groups. It was pointed out that the attempt of the prayers held in the hall was to create harmony and peace amongst different nations. The learned Counsel relied upon the decision in Mammen Varghese v. State of Kerala [ 2024 (4) KLT 698 ] to contend that there was no intention at all to insult the National Flag. 5. It was pointed out that the attempt of the prayers held in the hall was to create harmony and peace amongst different nations. The learned Counsel relied upon the decision in Mammen Varghese v. State of Kerala [ 2024 (4) KLT 698 ] to contend that there was no intention at all to insult the National Flag. 5. Sri.Prasanth M.P., the learned Public Prosecutor contended that the allegations are serious and, therefore, custodial interrogation is necessary to unravel the truth of allegations and since prima facie the Indian National Flag was kept along with the National Flag of Pakistan and also the same was huddled together with other flags kept near the bathroom, there is a certain element of insult and disrespect, shown to the flag and hence petitioner ought not to be granted anticipatory bail. 6. I have considered the rival contentions. 7. Petitioner is alleged to have committed the offence under Section 196(1)(a) of BNS apart from Section 2 of the National Honour Act, 1971. As per Section 196(1)(a) of BNS, whoever by any words, either spoken or written, signs, visible representations, electronic communications on the grounds of religion, race, place of birth, residence, language, caste or community promotes or attempts to promote any disharmony, or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities is made punishable with imprisonment, which may extend to three years. 8. Except for a vague allegation in the FIR that there was an attempt to create enmity, hatred and ill-will amongst different communal and political organisations, from the materials collected so far, it cannot be comprehended that any attempt was made to create ill-will, hatred or disharmony between different religions, racial, language or regional groups of castes or communities. Petitioner’s contention that the entire programme was organised to promote harmony amongst different nations is significant in the context of the provisions of Section 196(1)(a) of BNS. Creating enmity between different countries is not the essence of Section 196(1)(a) of BNS. However, that is a matter which needs to be probed further during the course of investigation. 9. Petitioner’s contention that the entire programme was organised to promote harmony amongst different nations is significant in the context of the provisions of Section 196(1)(a) of BNS. Creating enmity between different countries is not the essence of Section 196(1)(a) of BNS. However, that is a matter which needs to be probed further during the course of investigation. 9. As far as Section 2 of the National Honour Act is concerned as observed in the decision in Mammen Varghese [supra], unless there is a deliberate action with an intention to insult the National Flag, the offence will not be attracted especially when the allegation relates to the National Flag. Whether there was a deliberate action to insult the National Flag, though a matter which has to be identified during the course of investigation, prima facie, it is not evident that there was such a deliberate action on the part of the petitioner. 10. Taking note of the nature of allegations in the FIR as well as the statutory provisions referred to above, I am of the view that the custodial interrogation of the petitioner is not necessary. However, he must subject himself to interrogation for the purpose of completing the investigation as observed in the decision in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another , [ (2020) 5 SCC 1 ]. Accordingly, this bail application is allowed on the following conditions: (a) Petitioner shall appear before the Investigating Officer on 11.07.2025 and shall subject himself to interrogation. (b) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer. (c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation. (d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. (e) Petitioner shall not commit any similar offences while he is on bail. (f) Petitioner shall not leave India without the permission of the Court having jurisdiction. (d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. (e) Petitioner shall not commit any similar offences while he is on bail. (f) Petitioner shall not leave India without the permission of the Court having jurisdiction. In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications, if any, and pass appropriate orders in accordance with law, notwithstanding the bail having been granted by this Court.