The central legal point established in the judgment is that the absence of mens rea or intention to disrespect the national flag is crucial in determining offenses under the Prevention of Insult to National Honour Act, and that acts not demonstrating deliberate disrespect or contempt as defined in the law do not constitute offenses.

( 1 ) THIS criminal revision impugns the order dated 8-2-2002 passed by learned Judicial Magistrate First Class, seorii in Criminal Trial No. 432/99, framing charges under Sections 2 and 3 of the prevention of Insult to National Honour Act, 1971 (for short 'the Act' ).

( 2 ) IT is said that the complainant being a sarpanch and the accused/applicant being the Principal of a Government High School were on inimical terms over hoisting of the national flag on 26-1-1999. It is also said that the issue was resolved and it was decided that the complainant would hoist the flag on the republic day in the premises of the school. It is also said that inadvertently the flag was tied in reverse order by putting saffron colour down by a lower staff of the school and the moment it came to the notice of the accused the flag was put in order and the matter ended. However, the complainant lodged a report with Police which was registered as Rojnamacha Sanha No. 600 dt. 26-1-99 at Police Station Ugali alleging that the flag was tied in improper manner for hoisting. After a preliminary enquiry an FIR was registered against the applicant after 3 months on 9-4-99. On an investigation, a chargesheet was filed and the accused/applicant has been put up for trial upon charges under Sections 2 and 3 of the Act.

( 3 ) LEARNED counsel for the applicant submits that looking to statements and objects of the Act so also the provisions of Sections 2 and 3, materials on record prima facie do not attract the ingredients of the offences as above. Learned counsel further submits that the most important element for such prosecution is the presence of disrespect for the national flag which is conspicuous by absence in the instant case. Learned counsel further submits that specific acts which may lead to a conclusion of disrespect to the national flag are burning, trampling, defiling or mutilating in public. He also submits that the flag was hoisted at a place which is not located within the precincts of the Government High School where the applicant/accused is employed as the Princi pal. Learned counsel also submits that the applicant being a Principal of Government high School is entitled to get protection under Section 197, Cr. P. C. against his prosecution.

( 4 ) ON the other hand, Shri Ajay Mishra, learned Dy. Advocate General assisting the court fairly submits that from a reading of the provisions of Sections 2 and 3 of the Act so also on a careful scrutiny of materials on record, charges in question are not made out. Leaned Dy. Advocate General, further submits that at the most, the act of tying the flag can be said to be an improper act and it cannot be presumed to be a deliberate act of undermining the sovereignty of the nation. Learned Dy. Advocate General further submits that the Government of madhya Pradesh in pursuance of a Flag code published by the Government of India, Ministry of Home Affairs, has issued a circular that putting saffron colour of the flag down and hoisting it in that manner would amount to an incorrect display of the flag. According to him, it does not give rise to a criminal liability. He further submits that the meaning of contempt as given in the Black's Law Dictionary does not include an improper act and it reads as : "a wilful disregard or disobedience of a public authority. " Learned Dy. Advocate General also submits that though the applicant has been put on trial under an inclusive clause of Section 2 as : "or otherwise brings into contempt (whether by words, either spoken or written, or by acts)", yet this clause being general in nature, in the absence of a mens rea, does not constitute the ingredients of offences charged with.

( 5 ) ON a due consideration, in the absence of materials on record in terms of sections 2 and 3 of the Act, trial of the applicant upon charges as such would be a trial in void. Section 2 and 3 of the Act on reproduction read as under :2. Insult to India National Flag and Constitution