ORDER :

The Flag Code of India opens with a declaration that the Indian National Flag represents the hopes and aspirations of the people of India, and it is a symbol of our national pride. The Respondent in this case, on coming to know about a function conducted at Coimbatore and the manner in which the Indian National Flag was portrayed in that function, felt that the participants have deliberately disrespected the National Flag, which resulted in a criminal complaint, and the consequent orders passed therein which is the subject matter of challenge in the present Criminal Original Petition.

2. The crux of the complaint was that, on 25.12.2013, at a public function celebrating the Christmas festival, a cake measuring 6 ft. length and 5 ft. breadth, the icing on which carried a tri-colour Indian map outline with the Ashoka Chakra in the centre, was cut, distributed and consumed by the Special Guests and about 2500 participants including 1000 children who attended the celebration. According to the complainant, the said function was attended by the District Collector of Coimbatore, The Deputy Commissioner of Police, and various other religious leaders and members representing a number of Non-Governmental Organisations. The grievance of the complainant was that the representation of the Indian National Flag on the cake and the cutting of the same amounts to an offence under Section 2 of The Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as “the Act”).

3. The Respondent became aware of the Christmas function on 26.12.2013 after it was reported in all the newspapers. The Respondent strongly felt that the participants had insulted the National Flag, and hence, he gave a complaint to the B-12 Police Station, Coimbatore, on 30.12.2013. According to the Respondent, the police refused to entertain this complaint. Aggrieved by the same, the Respondent filed a petition under Section 156(3) of The Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) before the learned Judicial Magistrate- V, Coimbatore to direct the police to register an FIR and file a Final Report.

4. The learned Magistrate decided to deal with the petition as a complaint under Chapter XV, Cr.P.C., and the same is clear from the proceedings of the court dt. 19.03.2014. The learned Magistrate took cognisance of the complaint under Section 190(1)(a), Cr.P.C. and recorded the sworn statement of the Respondent on 02.11.2015. That apart, the learned Magistrate also recorded the sworn statements of two more witnesses on 10.03.2016 and 02.04.2016, respectively.

5. The learned Magistrate thereafter exercised the jurisdiction under Section 156(3), Cr.P.C. and passed an order on 17.02.2017, directing the police to register an FIR against the concerned persons for an offence under Section 2 of the Act, to inquire the same and to file a Final Report.

6. The State has filed the Criminal Original Petition under Section 482, Cr.P.C. challenging the Order passed by the learned Magistrate on 17.02.2017. The Respondent has filed the Writ Petition to direct the police to comply with the orders passed by the learned Magistrate.

7. Mr. C. Emilias, learned Additional Advocate General (hereinafter referred to as “the AAG”) appearing on behalf of the State made the following submissions :

- Even if the allegations made in the complaint are taken as it is, it does not make out an offence under Section 2 of the Act.

- The complaint was based only on paper reports, and the complainant did not have any personal knowledge about the function that was held on 25.12.2013.

- The complainant initially filed a petition under Section 156(3), Cr.P.C., and it was entertained by the court below even without a supporting affidavit and hence it is in violation of the mandate prescribed by the Hon’ble Supreme Court in Priyanka Srivatsava v. State of U.P. reported in 2015 (6) SCC 287.

- The court below, after having taken cognisance of the complaint and proceeding to deal with