ORAL JUDGMENT:

1. Heard Mr. A.B. Moon, learned Counsel for the applicant, Mr. C.N. Adgokar, learned Additional Public Prosecutor for non-applicant No.1/State and Mr. S.A. Mohta, learned Counsel for non-applicant No.2.

2. Admit. Heard finally by consent of learned Counsel for the parties.

3. A very short question arises for determination in this petition:

'Whether noncompliance of Clause 2.1(xi) Flag Code necessarily amounts to an offence punishable under the Prevention of Insult to National Honours Act, 1971.'

The said Clause runs as under:

“where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions;”

4. In the present case, the applicant was a Headmaster of the School where the flag was allegedly found hoisted till midnight on the flag post. It was set down by the complainant-Police Constable and complaint was made to the police station by the complainant. First Information Report was registered against the applicant and further investigation is going on. While setting down the flag, a Photographer was called and photographs were taken. Statements of the Photographer and other persons presented on the spot have been recorded.

5. The applicant has submitted this application for quashing the First Information Report on the ground that he has been falsely implicated in this case. His submissions are two fold i.e. firstly he has been falsely implicated in this case as no incident as alleged had occurred, secondly even if it is admitted that the flag was found hoisted till midnight on the flag post, it does not amount to an offence.

6. During the course of hearing, Mr. A.B. Moon, learned Counsel for the applicant, has submitted that, in fact the applicant has been falsely implicated as all the arrangements were made to see that the evidence could be created against the applicant. Mr. A.B. Moon has further submitted that politically motivated case is prepared by the complainant at the instance of the other villagers. Mr. C.N. Adgokar, learned Additional Public Prosecutor for non-applicant No.1 and Mr. S.A. Mohta, learned Counsel for non-applicant No.2 have submitted that since the applicant has violated the flag code, his act is punishable under Section 2 of the Prevention of Insult to National Honours Act, 1971.

7. This issue has been decided by the Hon’ble Supreme Court in 2004(1) SCALE 677, Union of India vs. Naveen Jindal and another in Civil Appeal No.453/2004. The Hon’ble Supreme Court in Paragraphs 28 & 29 held as under:

“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 byelaw, rule, regulation, notification, custom or usage having in the territory of Indian 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. 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 lea