IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8306/2018 BETWEEN:
SRI.RAVIKUMAR S.B. S/O. BASAVARAJAIAH AGED ABOUT 34 YEARS, PANCHAYATH DEVELOPMENT OFFICER GRAMA PANCHAYATH CHANGADAHALLI, SAKALESHPUR TALUK, HASSAN DISTRICT - 573137 (BY SRI.RANJITH K.S., ADVOCATE) AND:
STATE OF KARNATAKA BY YESALURU POLICE STATION, SAKALESHAPUR TLAUK, HASSAN DISTRICT, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BANGALORE-560 001 (BY SRI.S.RACHAIAH, HCGP) ... PETITIONER ... RESPONDENT THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE CHARGE SHEET / PROCEEDINGS IN C.C.NO.405/2018 IN CRIME NO.5/2018 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, SAKALESHPURA, HASSAN.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for Admission by consent of learned Advocates appearing for parties it is taken up for final disposal.
2. Petitioner who is working as a Panchayat Development Officer at Grama Panchayat of Changadahalli Village, Sakleshpur Taluk, is before this Court for quashing of the proceedings pending on the file of Additional Civil Judge and JMFC, Sakaleshpura, whereunder he has been charge-sheeted for the offences punishable under Section 2 of Prevention of Insults to National Honour Act. 1971 (hereinafter referred to as ‘Act’ for short).
3. On the basis of intelligence inputs received by Yesaluru Police Station, Hassan District, to the effect that Indian National Flag hoisted at Changadahalli Grama Panchayat Office on 11.01.2018 had not been lowered down even after 7.00 p.m. FIR in Crime No.0005/2018 came to be registered against petitioner for the offence punishable under Section 2 of the Act. After investigation charge sheet came to be filed for the said offence and as such, petitioner is before this Court for quashing of the same.
4. It is the contention of Sri.Ranjith K.S, learned counsel appearing for petitioner that alleged offence would not come within four corners of Section 2 of the Act and as such even in the event of allegation made against petitioner were to remain unrebutted, it would not end in conviction and as such directing the petitioner to undergo the ordeal of trial would not be justifiable and as such he prays for quashing the said proceedings. In support of his contention he has relied upon the judgment in the case of UNION OF INDIA vs. NAVEEN JINDAL AND ANOTHER reported in (2004) 2 SCC 510.
5. Per contra, Sri.S.Rachaiah, learned HCGP appearing for respondent-State would support the case of prosecution and prays for dismissal of the petition. He would also submit that prosecution ought to have been initiated against petitioner for the offence punishable under Section 188 of IPC and as such liberty may be granted to respondent to initiate appropriate proceedings against petitioner.
6. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that National Flag was kept flying at Changadahalli Grama Panchayat Office on 11.01.2018 after sunset. Hon’ble Apex Court in the case of UNION OF INDIA vs. NAVEEN JINDAL AND ANOTHER reported in (2004) 2 SCC 510 has held that Flag Code which prescribes after sunset Flag has to be lowered down, is not a law within the meaning of Article 13(3)(a) of the Constitution of India. It has been held:
“78. Flag Code is not a statute; thereby the fundamental right under Article 19(1)(a) is not regulated. But the guidelines as laid down under the Flag Code deserve to be followed to the extent it provides for preservation of dignity and respect for the National Flag. The right to fly the National Flag is not an absolute right. The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is that the duty to respect the flag must be strictly obeyed. The pride of a person involved in flying the flag is the pride to be an Indian and that, thus, in all respects respect to it must be shown. The State may not tolerate even the slightest disrespect.”
7. Paragraph 2.2(xi) of the Flag Code, 2002, mandates that a member of public, private organization or an educational institution may hoist/display the National Flag on all days or occasions, ceremonial or otherwise. Consistent with the dignity and honour of the National Flag and the Flag so displayed in any public place should be hoisted from sunrise to sunset, irrespective of weather conditions. Thus, said clause does not mandatorily contemplate lowering of National Flag so hoisted after sunset. Section 2 of the Act which has been pressed into service reads as under:
“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 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 extent to three years, or with fine, or with both.”
8. A bare reading of above provision would clearly indicate that burning, mutilating, defacing, defiling, disfiguring, destroying, trampling upon or otherwise showing 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, in any public place or in any place within the public view, is punishable with imprisonment for a period of three years, or with fine, or with both.
9. Failure to lower down the National Flag after sunset no doubt does not fall under “Explanation 4” to Section 2 of the Act. Under identical circumstances Bombay High Court in W.P.No.3459/2011 in the matter of AMGONDA VITHOBA PANDHARE VS. UNION OF INDIA & ORS. has held that Principal of a school who was charge-sheeted for not lowering down the National Flag after sunset would not be liable to be proceeded with as said act of the accused does not fall under Explanation 4 to Section 2 of the Act for which accused was charge-sheeted. Under similar circumstances, Kerala High Court in Crl.Misc.No.1208/2016 in the matter of P.K.SATHEESH BABU VS. STATE OF KERALA has also held that not lowering down the National Flag after sunset would not be an offence under Section 2 of the Act and as such proceedings initiated against petitioner therein came to be quashed.
10. These two judgments have been consistently followed by other High Courts including High Court of Patna in W.P.No.18/2016 in the matter of PREMALATA KUMARI VS. STATE OF BIHAR AND OTHERS. Hence, keeping in view the above judgments and provisions of Prevention of Insults to National Flag Act, 1971, this Court is of the considered view that failure to lower the National Flag after sunset would not amount to disrespect to the National Flag and it would not attract provisions of the Act invoked.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Proceedings pending against petitioner in C.C.No.405/2018 on the file of Additional Civil Judge and JMFC, Sakaleshpura, Hassan, registered for the offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971, is quashed and petitioner is acquitted of the said offence.
SD/- JUDGE DR