Mistake committed by organizers in wrongly placing the Indian flag.

The Publisher, Sportstar Magazine is the petitioner herein.

2. This Sportstar Magazine dated 8-3-1997 published a photograph showing that Chess Grand Master Viswanathan Anand playing chess against V. Topalov in the Tournament in Linares in Spain. In the photograph, the Stop Watch and the Flag of the countries of the participants, which were displayed by the Organisers, were also depicted. While the chess play began, the Organisers had placed the Indian Flag upside down. Within a few minutes, the same was corrected by the Organisers by putting the flag in a proper position. Thereafter, the play continued.

3. Below the photograph published in the Magazine, the writer of the article had written a short report on the Chess Tournament as under :-

"Things went badly for Anand from the word go. He usually starts very well in such competitions. This time, he started with a defeat against Kasparov and ended the championship with a victory over Alexey Dreev. The Indian Flag, that was displayed, was placed upside down. When this was corrected, he started to play well and won 2 games."

4. The respondent/complainant, a resident of Gwalior, on reading the article published with the photograph depicting the Indian Flag which was placed upside down, felt that the Indian Flag was dishonoured. So, he filed a private complaint against the petitioner, the publisher of the Magazine alleging that he committed the act of insult to the Indian National Flag, thereby he is liable to be punished under Section 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as "the Act") before the learned Judicial Magistrate 1st class, Gwalior, Madhya Pradesh.

5. On receipt of the summons from the Court, the petitioner filed a transfer petition under Section 406 of Cr.P.C. before the Supreme Court for the transfer of the case to the Court at Chennai. Accordingly, by the order dated 27-7-1998, the Supreme Court ordered transferring the case to the Court of the Chief Metropolitan Magistrate, Chennai for trial. In pursuance of the said order, the case was transferred to Chennai and taken on the file of the Chief Metropolitan Magistrate, Egmore as C.C. No. 7760 of 1998.

6. On receipt of the complaint copy and other records, the petitioner has filed this petition under Section 482, Cr.P.C. to quash the proceedings on the ground that the complaint is not maintainable, since the facts stated in the complaint would not constitute the offence under Section 2 of the Act.

7. Entertaining this petition, this Court ordered notice to the respondent/complainant on 18-11-1998. However, the said notice was returned unserved. Therefore, by the order dated 3-2-1999 this Court directed private notice by issuing a telegram. Accordingly, a telegram was issued on 4-2-1999 and for proof of service, the petitioner has filed an affidavit of service stating that the private notice ordered by this Court has been served on the respondent/complainant. Even after receipt of the notice, the respondent did not choose to enter appearance. Therefore, this Court is constrained to hear the counsel for the petitioner and pass an order after perusal of the petition and other records.

8. The main point urged in this application is as follows :-

"On a proper interpretation of Section 2 of the Act, it is only if a person brings into contempt or otherwise deals with the Indian National Flag in the manner described in Section 2 that he would be responsible for committing an offence under Section 2. But, the facts and circumstances of the case as contained in the article and the complaint would reveal that the Organiser of the Tournament in a foreign country has merely by a mistake placed the Indian National Flag upside down. It is not the case of the complainant that the petitioner being a Publisher of the Magazine was responsible for placing the Indian National Flag upside down, but it was done by the Organiser of the Tournament, which was being conducted in Spain