The court determined that a lack of prima facie evidence for intent to insult the National Flag or promote disharmony justified granting bail subject to conditions for cooperating with the investigation.

ORDER :

BECHU KURIAN THOMAS, J.

This bail application is filed under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).

2. Petitioner is the accused in Crime No.226 of 2025 of Udayamperoor Police Station, Ernakulam, registered for the offences punishable under Section 196 (1)(a) of the Bharatiya Nyaya Sanhita, 2023 [for short, ‘the BNS ’] and Section 2 of the Prevention of Insults to National Honour Act, 1971 [for short, ‘the National Honour Act’].

3. According to the prosecution, the accused, with an intention to promote disharmony, enmity, hatred and ill-will between different communal and political organisations, had kept the Indian Flag near the bathroom of an auditorium by name ‘Jesus Generation’ and also displayed the Indian Flag along with the Pakistan Flag and conducted a religious service and thereby committed the offences alleged.

4. Sri.Rajesh Kumar T.K., the learned counsel for the petitioner submitted that the allegations are false and the said incident has been misinterpreted by the complainant with some ulterior motives. According to the learned Counsel, petitioner is the owner of an auditorium, where prayers were conducted by the Pentecostal community, in a 40 day fasting and worship programme organised for the children in connection with the new academic year. The prayers also intended to focus on peace, harmony and brotherhood amongst various nations and 20 random countries were selected, whose flags were displayed. The learned Counsel pointed out that, after the prayer programme was completed, the different flags were collected and kept on the side to make way for a marriage programme and it was at that juncture that the complaint was filed alleging that the flags were kept near the bathroom. It was also submitted that there was no attempt to insult or show disrespect or even to promote any hatred or enmity between any community or religious or political groups. It was pointed out that the attempt of the prayers held in the hall was to create harmony and peace amongst different nations. The learned Counsel relied upon the decision in Mammen Varghese v. State of Kerala [2024 (4) KLT 698] to contend that there was no intention at all to insult the National Flag.

5. Sri.Prasanth M.P., the learned Public Prosecutor contended that the allegations are serious and, therefore, custodial interrogation is necessary to unravel the truth of allegations and since prima facie the Indian National Flag was kept along with the National Flag of Pakistan and also the same was huddled together with other flags kept near the bathroom, there is a certain element of insult and disrespect, shown to the flag and hence petitioner ought not to be granted anticipatory bail.

6. I have considered the rival contentions.

7. Petitioner is alleged to have committed the offence under Section 196 (1)(a) of BNS apart from Section 2 of the National Honour Act, 1971. As per Section 196 (1)(a) of BNS , whoever by any words, either spoken or written, signs, visible representations, electronic communications on the grounds of religion, race, place of birth, residence, language, caste or community promotes or attempts to promote any disharmony, or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities is made punishable with imprisonment, which may extend to three years.

8. Except for a vague allegation in the FIR that there was an attempt to create enmity, hatred and ill-will amongst different communal and political organisations, from the materials collected so far, it cannot be comprehended that any attempt was made to create ill-will, hatred or disharmony between different religions, r