Application filed under Section 438 of the Code of Criminal Procedure.
2. Petitioner is the 4th accused in Crime No.1201 of 2014 of the Thampanoor Police Station registered for the offences punishable under Section 124A of the Indian Penal Code, Section 66A of the Information Technology Act, 2000 and Sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971.
3. It seems that the allegations in respect of the offences under Section 124 A of the Indian Penal Code and Section 66A of the Information Technology Act, 2000 are specifically meant against A1 to A3. The allegation against the petitioner is that while the National Anthem was being played on 18.08.2014 at 06.28 p.m., the petitioner along with A1, A3 and A5 to A7 had expressed utter disrespect by howling and sitting.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
5. It seems that the Section 2 of the Insults to National Honour Act, 1971 is with regard to the Insult to Indian National Flag and Constitution of India, and the said provision has no application to the facts and circumstances of this case. Section 3 of the said Act is with regard to prevention of singing of Indian National Anthem etc. It says:
“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 1[otherwise 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.”
6. The learned counsel for the petitioner has pointed out that Section 3 cannot be applied to the facts and circumstances of the case, and the act allegedly done by the petitioner will not constitute an offence punishable under Section 3 of the said Act. In order to bring out an offence under Section 3, one has to prevent the singing of the Indian National Anthem or he has to cause disturbance to any assembly engaged in such singing. There is no case that he has prevented the singing of Indian National Anthem; further, there is no case that an assembly was engaged in singing National Anthem. When an assembly was engaged in singing National Anthem, if it is prevented, it will constitute an offence within the meaning of Section 3. Here, in this case the National Anthem was allegedly played mechanically. There is no allegation that he had attempted to stop playing the National Anthem and there is no allegation that the assembly was singing National Anthem and he had attempted to prevent such singing.
6. Considering the said aspects, I am of the view that this is a fit case wherein anticipatory bail can be granted to the petitioner.
In the result, this bail application is allowed and the investigating officer or such other police officer, who is conducting the arrest of the petitioner, is directed to enlarge the petitioner on bail in the event of his arrest on his executing a bond for Rs.25,000/- (Rupees twenty five thousand only) with two solvent sureties for the like sum each to the satisfaction of the officer conducting arrest, and subject to the following terms and conditions:-
(i) The petitioner shall report before the investigating officer in between 09.00 a.m. and 11.00 a.m. on all Saturdays and Wednesdays commencing from 15.11.2014 for a period of three months.
(ii) The petitioner shall not tamper with the evidence or influence witnesses.
(iii) The petitioner shall make himself available for interrogation as and when required by the investigating officer.
(iv) The petitioner shall not involve in any offence while on bail.
It is made clear that the violation of any of the conditions stipulated above will result in the cancellation of bail.
Sd/-
B.KEMAL PASHA, JUDGE.
AS /True copy/ P.A. to Judge