The central legal point established in the judgment is the requirement of actus reus and mens rea for an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971.

JUDGMENT

(Prayer: Petition under Section 482 of the Criminal Procedure Code to call for the records in C.C.No.23 of 2021 on the file of the learned Assistant Sessions Judge, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1 and quash the same against the petitioner.)

1. This criminal original petition has been filed under Section 482 of the Criminal Procedure Code (for short, the Code) to quash the proceedings in C.C.No.23 of 2021 pending before the learned Assistant Sessions Judge, Additional Special Court for Trial of Cases relating to MPs and MLAs, Singaravelar Maligai, Chennai-1.

2. A complaint came to be given by the second respondent herein before the first respondent - Police to the effect that the petitioner had released a video on 03.8.2020 on his youtube channel and made objectionable remarks with an intention of spreading false information against the then Chief Minister of Tamil Nadu and also insulted the national flag to incite communal violence in the State. Based on the said complaint, a first information report came to be registered in Cr.No.260 of 2020 on the file of the first respondent for an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971 (for brevity, the Act). The investigation was taken up by the first respondent and a final report came to be filed before the Court below and it was taken cognizance in C.C.No.23 of 2021. In the above criminal original petition, the proceedings before the Court below has been put to challenge by the petitioner.

3. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the first respondent. Though the second respondent has been served and his name printed in the cause list, he does not choose to appear before this Court either in person or through a counsel.

4. The main allegation that has been put against the petitioner is that he made certain remarks in the video and for proper appreciation, the same are extracted as hereunder

5. The only issue to be decided is as to whether the above remarks made by the petitioner will constitute an offence under Section 2 of the Act.

6. For proper appreciation, Section 2 of the Act is extracted as hereunder:

"Insult 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."

7. For any act to be termed as an offence under Section 2 of the Act, actus reus and mens rea should be established. The actus reus being any of the actions in Section 2 and Explanation-4 and the mens rea being the intention to disrespect or contempt.

8. For the issue as to what constitutes an offence, the decisions of the Apex Court and various High Courts were taken into consideration in the decision rendered by me in the case of State rep. by the Inspector of Police, B 12 Police Station, Coimbatore Vs. D.Senthilkumar [reported in 2021 (1) LW (Crl.) 652]. After analysing all the judgments, I came to the conclusion that the intention to commit the offence i.e. to cause insult, show disrespect or to bring into contempt towards the national flag, is placed at a very high threshold and such intention must be so mala fide and apparent to attract an offence under Section 2 of the Act.

9. In the instant case, the petitioner had commented upon a statement made by the then Chief Minister of Tamil Nadu deprecating the statue of late Chief Minister of Tamil Nadu namely Mr.M.G. Ramachandran adorned with a saffron colour shawl. The petitioner had stated that if the saffron colour was to be deprecated