Point of Law: Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge

JUDGMENT :

1. Heard learned Advocate Shri Gaurav Mehta for the applicant, learned APP Ms. M.D. Mehta for respondent no.1-State and learned Advocate Shri Kaivan K. Patel for respondent no.2.

2. By way of this application the applicant seeks quashment of FIR being C.R. No. II- 87 of 2014 registered with Vijapur Police Station on 16.02.2014 alleging offence punishable under Section 3.6 of the Prevention of Insults to National Flag Act, 1971 [ (sic) Prevention of Insults to National Honour Act, 1971]. The allegation levelled in the impugned complaint in brief being that the complainant at the relevant point of time was working as in charge Commanding Officer of Home Guard Unit at Vijapur where the applicant-accused was working as part-time Peon with the said Unit. It is alleged that on 26.01.2014 i.e. on Republic Day, the respondent no.2- complainant had gone to Mamlatdar Office and he had instructed the applicant-accused and one another employee being part-time Peon to hoist the National Flag at 9.00 a.m in the morning and lower the National Flag down at evening after the time is over. It is alleged that both the employees had shown negligence in duty and did not lower the National Flag on 26.01.2014 and they lowered the National Flag on 27.01.2014 at 12.30 hours. Upon asking, it was informed by the said employee that due to inadvertence National Flag had not been lowered down. Thus alleging the impugned complaint had been preferred.

3. Learned Advocate has submitted that the applicant was not allowed to join the duty from 24.10.2013 onwards and copy of muster roll obtained by the applicant shows that after 24.10.2013 the applicant had not signed muster roll. The muster roll is also annexed with the petition. Learned Advocate thus submitted that on 26.01.2014 the applicant was not on duty and therefore the allegations levelled in the complaint are false and fabricated.

4. Learned Advocate Shri Mehta on behalf of the applicant -accused has submitted without prejudice to what has been submitted in the foregoing paragraph that the complaint was absolutely malafide inasmuch as the complainant Commanding Officer by way of office order dated 25.10.2013 had passed an order whereby all the duties of the Unit assigned to the part time Clerk were recalled and distributed to the five NCOs named in the said order. Learned Advocate therefore submits that the applicant was not at all responsible nor he could be entrusted with such responsibilities, since all responsibilities were distributed to other persons.

4.1. Learned Advocate Shri Mehta has also submitted that incident alleged in the complaint had occurred on 26.01.2014 whereas the complaint had been registered on 16.02.2014. Therefore the complaint deserves to be quashed on the ground of delay also. Thus submitting learned Advocate Shri Mehta has requested this Court to quash the impugned complaint.

5. On the other hand learned APP has submitted that since a FIR is lodged whereby prima facie disrespect has been shown to the National Flag, therefore the authorities had taken action by registering the complaint in accordance with law.

6. Learned Advocate Shri Kaivan Patel on behalf of respondent no.2- original complainant has supported the complaint and has submitted that the applicant and one another employee had been entrusted with hoisting the National Flag and lowering the National Flag and whereas on Republic Day in the year 2014 the said employees including the present applicant had not lowered the National Flag after sunset and thus Criminal Complaint was rightly filed and this Court may not interfere with the complaint at all.

7. Heard learned Advocates for the parties who have not submitted anything further.

8. At the outset it is required to be mentioned that the offence alleged in the complaint, translated from Gujarati as written in the complaint reads as thus:

“Offence punishable under Section 3.6 of the Prevention of Insults to National Flag Act.

8.1 It is required to be noted that ther