The main legal point established in the judgment is that standing up respectfully when the National Anthem is sung but not singing oneself does not constitute an offence under section 3 of the Prevention of Insults to National Honour Act, 1971, as emphasized in the decision of the Hon'ble Apex Court in Bijoe Emmanuel and others v. State of Kerala and others.

D.V. SHARMA, J.

1. The instant petition under section 482 Cr.P.C. has been preferred against the order dated 17.4.2002 of Chief Judicial Magistrate, Lucknow who after recording the statements of the complainant under section 200 Cr.P.C. and further proceeding under section 202 Cr.P.C. and on perusal of record, was satisfied that prima facie the petitioners committed the offence of section 3 of the Prevention of Insults to National Honour Act, 1971 and issued process under section 204 Cr.P.C. and without appearing before the Court of learned Chief Judicial Magistr.ate they approached this Court and the operation of the impugned order was stayed by a learned Single Judge of this Court on 18.7.2002.

2. Factual matrix is as under Opposite party No.2 Pratap Chandra, son of Late Mohan Lal, R/o 4/1, Vivek Khand, P.S. Gomti Nagar, District Lucknow filed a criminal complaint against the petitioners who were the producer and Director of the film Kabhi Khushi Kabhi Gham on the ground that while watching the movie in theater Novelty situated at Lalbagh, Lucknow, the complainant found several irregularities which constitute offence under section 3 of the Prevention of Insults to National Honour Act, 1971. Relevant extracts of the complaint are reproduced as under:"1. That the present complaint petition is being filed, being aggrieved with a particular scene of the famous film "Kabhi Khushi Kabhi Gham", produced by the opposite party No. 1, directed by the opposite party No. 2 which was permitted by the opposite party No.3 for the exhibition to the public all over India or abroad. The film mentioned above is being exhibited to the public of our Great Nation in various cinema halls throughout. The Cinema halls where the above film is exhibited are governed with the relevant rules and regulations which are to be implemented by the State and Central Government.

6. That after interval of the film mentioned above, after about one hour there is a scene in the film annual function of a school giving primary education. Where, a student of IV standard, named as 'Krishi' was there with his parents and other family members, this was only the student has to perform in the annual function with a song. All the invited guardians, students, staff of the school was standing here and there, all were requested / called by the teacher to sit down. Pasteurization of the scene is fully focused on the Shahrukh Khan, Kajol, Kareena Kapoor and Farida Jalal. After delivery of some dialogues between father, mother of that child/student i.e. Shahrukh Khan and Kajol respectively they all take their seats. It is necessary to mention here that this was only the student who was called to perform in the annual day function of the school.

7. That next, in the scene, after the settings the announcement is made by the teacher hosting the annual day programme, she called the Krishi the student to recite the poem. The student came on the stage on the other hand in the scene his mother i.e. Shahrukh, was delivering some dialogues with each other and lastly mother says' GA DO RE MI' the child i.e. student at once started National Anthem of our Great Nation India, with him other students also recited the National Anthem. It is also shown that the other ones were started standing after some movements, the student breaked the National Anthem in last line, when he stopped he said sorry.

Then his mother i.e. Kajol completed the remaining lines. This took much time than the prescribed time, when he started National Anthem the public seeing the movie was sitting except some ones.

8. That besides this every day lakhs of people seeing the movie are insulting the National Anthem. Because opposite party No.1 and No. 2 has not given any caution in scene that can alert the public to stand properly in Honour of National Anthem. While it is fundamental duty of every citizen, Article 51-A clause (b) specifically says, that it is fundamental duty of every citizen to honour National anthem, op