JUDGMENT - S.S. DANI, J.:---Heard Shri Shelke, learned Counsel for the petitioner and Shri Patil, learned A.P.P., for the State.

2. The matter is taken up for final hearing by consent.

3. The petitioner is the Sarpanch of village Pangri which is under the jurisdiction of Loha police station, district Nanded. It is alleged that on 15-8-1994, on the Independence day, the petitioner while hoisting the Indian National Flag brought into contempt by not properly unfurling the Flag. On the basis of this complaint, an offence punishable under section 2 of the Prevention of Insults to National Honour Act, 1971 came to be registered against the petitioner at Crime No. 23 of 1994 at Loha police station. It is alleged by the prosecution that at village Pangri the petitioner hoisted and unfurled the Flag by tying the bottom with a string and not from the top side and as such, the Flag came one foot down from upwards and this brought the Indian National Flag into contempt by his own action. The petitioner moved the Sessions Court at Nanded under section 438 of the Criminal Procedure Code in Criminal Application No. 449 of 1994 for the relief of anticipatory bail. The 2nd Additional Sessions Judge, Nanded, by the impugned order dated 24-8-1994, however, rejected the application on the ground that the alleged offence is bailable one and as such, the provisions of section 438, Cr.P.C. are inapplicable. The petitioner has, therefore, approached this Court in the present application against the said order and has also sought for the same relief of anticipatory bail.

4. Section 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as the Act for the sake of bravity) runs thus :

"Whoever in any public place or in any other place within public view burns, mutilates, .... 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."

5. The 2nd Additional Sessions Judge, Nanded construed this offence as falling in category No. 3 of "II-Classification of offences against other laws" as mentioned in Schedule I of the Code of Criminal Procedure, 1973. The said classification runs thus :

Offence Cognizable or Bailable By what

Non-cognizable or Non-Bailable Court triable

If punishable with Any imprisonment for Magistrate. less than 3 years Non-cognizable Bailable

or with fine only.

According to this classification, therefore, an offence is bailable if punishable with imprisonment for less than three years or with fine only and it is on this basis that the 2nd Additional Sessions Judge held the offence complained of in this case as a bailable one and as such, refused to apply the provisions of section 438, Cr.P.C., 1973. Shri Shelke, learned Counsel for the petitioner, submitted that an offence under section 2 of the Act is one for which the punishment can be extended to 3 years and as such it falls under category No. 2 of the classification which makes on offence non-bailable if punishable with imprisonment for 3 years and upwards but not more than 7 years. Shri Shelke, learned Counsel for the petitioner, therefore, submitted that the application under section 438, Cr.P.C. for anticipatory bail is permissible in such a case.

6. The 2nd Additional Sessions Judge, Nanded found that the maximum punishment for the offence complained of is less than 3 years but not 3 years and upwards and as such, the offence is covered by 3rd category and not by 2nd category of the classfication. It is, however, to be noted that the punishment for an offence under section 2 of the Act can be inflicted not only upto 3 years but also for 3 years. It is no doubt true that the punishment for such an offence can be lesser than 3 years but it also at the same time cannot be forgotten that it can be for complete 3 years. The classification at

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