ORDER :

1. The petitioner herein, who is a documentary film maker, had directed the documentary film titled ‘Orutharum Varela’ touching upon the plight of the people affected by the Ockhi cyclone that hit the shores of Tamil Nadu and Kerala in December, 2017, which caused loss to many fishermen's lives. The trailer of the film was released through Youtube on 27.06.2018 and the film was released on 27.08.2018. The Sub-Inspector of Police attached to Gudalur Police Station, who is the respondent herein, claims to have browsed the internet and watched the film ‘Orutharum Varela’ and was of the opinion that the film spreads rumour that the Government has not done anything to rescue the fishermen's lives and that it has caused fear and unrest among fishermen community and also promotes disharmony between their community and other residents in neighbourhood. It was his further opinion that the video depicts the picture of a mutilated Indian National Flag, which brings disrespect to the Indian National Flag and on all these aspects, he had registered an FIR against the petitioner herein for offences under Sections 153-A(1)(b) and 505(1)(b) IPC along with Section 2 of the Prevention of Insult to National Honour Act, 1971 (hereinafter referred to as ‘said Act’). The said FIR is under challenge in the present petition.

2. The Learned counsel for the petitioner would submit that the ingredients of Section 153-A and 505(1)(b) IPC are not attracted, since there was no mens rea on the part of the petitioner, which is a vital ingredient to constitute these two offences. He would further submit that the documentary film does not depict any insult to the Indian National Flag and therefore, the offence under the said Act is not made out in respect of the said contention. Learned counsel relied upon a few decisions, which I shall deal with later.

3. The learned Additional Public Prosecutor on the other hand relied on the averments made in the counter affidavit and submitted that the documentary him spreads mischievous rumour against the Government and since the entire film causes fear and unrest among fishermen community and also promotes disharmony between their community and other residents in neighbourhood, the offences are clearly made out. It is also his submission that the film depicts the Indian National Flag in a mutilated condition, which brings disrespect to the Indian National Flag and therefore, the offences under the said Act is also made out. Since the investigation is still pending, it would be pre-matured to have the FIR quashed under Section 482 Cr.P.C.

4. I have given careful consideration to the submissions made by the respective counsels.

5. The documentary film ‘Orutharum Varela’ is the second film of the petitioner. The present FIR has been viewed by the Investigation Officer on 02.07.2018 and based on his complaint FIR came to be registered. Pursuant to the registration of FIR, the same Sub-Inspector of Police had commenced the investigation, which is pending.

6. The sum and substance of the complaint seems to be that the film promotes disharmony between the fishermen community and others and also is a public mischief and thereby, the petitioner has been implicated for the offence under Sections 153-A(1)(b) and 505(1)(b) IPC along with Section 2 of the Prevention of Insult to National Honour Act, 1971.

7. For the sake of convenience, Sections 153-A(1)(b) and 505(1)(b) IPC are extracted hereunder:

“153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony:-

(1) Whoever:

(a)...........

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility.

(c)...........

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505. Statements conducting to public mischief:-

(1) Whoever makes, publishes or circulates