Heard learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the Union of India and the learned APP appearing on behalf of the State.

2. The petitioner has field this petition under Article 226 of the Constitution of India read with provisions of Section 482 of the Code of Criminal Procedure for quashing the F.L.R. which is registered vide C.R.No.1 of 2010, dated 26.1.2010, which was filed at the instance of respondent No.5 and further proceedings arising out of the said F.I.R. being SCC No.150 of 2010 pending in the Court of the Judicial Magistrate, 1st Class, Jat, Dist. Sangli.

3. Brief facts of the case are as under :-

The petitioner is working as Head Master in Zilla Parishad Primary School, Sonlagi (Pandhrewasti), Taluka - Jat. The petitioner states that the flag hoisting programme was held on 26.1.2010 in the school in the morning. In the evening when the petitioner was going to the school for bringing down the flag at the appropriate time, he collapsed and became unconscious and he was admitted in the hospital of Dr.Mhaisale who is the Heart Specialist in Shri Sai Hospital. According to the petitioner, he informed his brother and another teacher to arrange for setting down the flag. He also informed one Shri Kumbhar, the Centre Head, to take the precaution of bringing down the flag before sunset. The petitioner was advised to take rest from 28.1.2010 to 31.1.2010.

4. Respondent No.4 - Police Inspector, Umadi Police Station, Tal. Jat, Dist. Sangli, filed a complaint under Section 2 of the Prevention of Insults to National Honour Act, 1971 (in short, the said Act) in which it was alleged that it was a duty of the petitioner to bring down the flag before sunset and since this was not done he had committed an offence under the said section.

5. According to the petitioner, a show cause notice dated 15.12.2010 was issued by the Primary School Division to the petitioner and he gave his reply on 13.8.2011. The learned counsel appearing on behalf of the petitioner submitted that even if the allegations which are made in the complaint are accepted at their face value, the averments of the F.I.R. do not constitute an offence under Section 2 of the said Act and, therefore, on that ground alone the charge-sheet which is filed under the said F.I.R. is liable to be quashed and set aside. It is further submitted that Code 2.2 and (xi) of the Flag Code of India, 2002 are merely guidelines which are laid down and it is not a statute and, therefore, even assuming that there is a violation of the Flag Code, the said violation does not constitute an offence under the said Act, 1971.

6. We have gone through the averments made in the complaint and we have also perused the Prevention of Insults to National Honour Act, 1971 and the provisions of Flag Code of India, 2002. So far as Section 2 of the said Act of 1971 is concerned, it 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 extend to three years, or with fine, or with both.

Explanation 1 :- Comments expressing disapprobation or criticism of the Constitution or of the Indian national Flag or of any measures of the government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section.

Explanation 2 :- The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible representation of the .Indian National Flag, or of any part or parts thereof, made by of any substance or represe