Mere presence at flag hoisting where flag later inverted insufficient for offence under Section 2(4)(l) without evidence of intentional display; cognizance without reasons invalid; proceedings quashed preventing abuse of process.

JUDGMENT :

ASHWIN D. BHOBE, J.

1. Heard Mr. Rajendra Sorankar, learned Advocate for the Applicant, and Ms. Pallavi Dabholkar, learned APP for the Respondent – State.

2. This Application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is preferred by the Applicant for the quashing of FIR No. 13 of 2017, dated 27.01.2017 (“impugned FIR”), registered by the Tilak Nagar Police Station under Section 2 (4) (l) of the Prevention of Insults to National Honour Act, 1971, and the Charge Sheet registered as Criminal Case No. 460 /PS/ 2017, arising out of the impugned FIR.

3. The material facts of the case are that on Republic Day in 2017, members of “Shri Rajani Society” gathered at the building, and a flag-hoisting ceremony was held at approximately 9:15 a.m. in the presence of Society members and children. After the ceremony, the Society members dispersed to attend their work, leaving the terrace gate open. Around 4:00 p.m. on 26.01.2017, 4 to 5 Police Officers arrived at the Society and reported that the flag hoisted on the terrace was inverted. A Pachamama was conducted. The impugned FIR stands registered against the Applicant and 5 other persons who were then members of the residential society “Shri Rajani Society”.

4. Upon investigation, the Respondent filed a charge sheet, and the proceedings were registered as Case No. 460/PS/2017 and allotted to the Judicial Magistrate First Class, 34^th Court, Vikhroli, Mumbai (“Magistrate”).

5. The charge in Case No. 460/PS/2017 was framed on12.08.2024. However, the same was quashed and set aside by the Court of the Sessions for Greater Mumbai, Branch at Mazgaon, vide Order dated 25.07.2025, passed in Criminal Revision Application No. 861 of2024, filed by the Applicant.

6. Mr Rajendra Sonwal, learned Advocate for the Applicant, submits that the Applicant is now a senior citizen (89 years of age), immobile and suffering from age-related ailments. He, therefore, on 22.01.2026, with the intent to prevent further distress to the Applicant and in view of the issue involving the National Flag, has placed on record an unconditional apology.

7. Mr Rajendra Sonwal submits that the FIR and the charge sheet do not contain the ingredients required to attract Section 2(4)(l) of the said Act. He submits that there is no material/evidence to indicate that the Applicant hoisted the flag, much less that he did so intentionally in an inverted position. He further submits that, apart from no case being made out against the Applicant, there are no independent witnesses to indicate that the Applicant hoisted the flag in an inverted position and/or that the flag was hoisted at the Applicant’s instance, on his instructions, or under his directions. He submits that the terrace of the society building does not fall within the domain of “public space”. He therefore submits that this Application be allowed.

8. Ms. Pallavi Dabhokar, learned APP for the Respondent, submits that the offence against the Applicant is made out. She, by referring to the statement of Deepak Jaysingh, watchman of Shri Rajani Society, submits that the offence is made out against the Applicants.

9. Arguments heard. Perused the records with the assistance of the learned Advocates.

10. Section 2 of the Prevention of Insults to National Honour Act, 1971 reads as follows:

“ 2. Insults to Indian National Flag and Constitution of India. —Whoever in any public place or in any other place within public view bu