Mere inaction in not lowering the National Flag does not constitute an offense under the Act without mens rea.

ORDER :

1. The petitioner is the sole accused in C.C.No.410/2016 on the files of the Judicial Magistrate of First Class, Angamaly (for short, the trial court). The offences alleged against him are punishable under Section 2 (a) of the Prevention of Insults to National Honour Act, 1971 (for short, the Act of 1971), read with Part-III, Section III , Rule 3.6 of the Flag Code of India, 2002 (for short, the Flag Code, 2002).

2. The petitioner was working as the Secretary of Angamaly Municipality. The prosecution allegation is that on Independence Day in the year 2015, the National Flag was hoisted in the compound of the Angamaly Municipality in the presence of the petitioner, and it was not lowered till noon of 17.8.2015. The Station House Officer, Angamaly Police Station, registered a suo motu FIR. Annexure I is the FIR. After the investigation, Annexure II final report was filed before the trial court. The trial court received the final report on file, took cognizance of the offence and numbered the case C.C.No.410/2016. The petitioner has approached this Court to quash the proceedings on the ground that the allegations in the final report, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against him.

3. I have heard Sri. S. Rajeev, the learned counsel for the petitioner and Sri. Sangeetha Raj N.R., the learned Public Prosecutor.

4. It is not in dispute that on 15.8.2015 in the morning, in connection with Independence Day, the National Flag was hoisted in the compound of the Angamaly Municipality in the presence and knowledge of the petitioner, and it was not lowered till noon of 17.8.2015. According to the prosecution, the National Flag can remain hoisted from sunrise to sunset only, and the petitioner, being the Secretary and head of the Municipality, is responsible for not lowering the flown National Flag at sunset on 15.8.2015. The crucial question is whether offences under Section 2 (a) of the Act, 1971, read with Part-III, Section III , Rule 3.6 of the Flag Code, 2002, are attracted for the said inaction on the part of the petitioner.

5. Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1) (a) of the Constitution of India, being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation. However, the fundamental right to fly the National Flag is not absolute but a qualified one, being subject to reasonable restrictions under Clause (2) of Article 19 of the Constitution of India. The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Act of 1971 regulate the use of the National Flag [ Union of India v. Naveen Jindal & Another (2004) 2 SCC 510]. Section 2 of the Act of 1971 deals with the insults to the Indian National Flag and Constitution of India. It 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 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,