The court emphasized the need for prima facie evidence to establish an offence and the limited scope for interference under section 482 of the Criminal Procedure Code to prevent abuse of the legal process.

N.K. Mody, J.

1. This is a petition under section 482 of the Criminal Procedure Code for quashment of the order dated 27-9-2007 and Criminal Complaint No. 33932/07 whereby the cognizance was taken by the learned JMFC, Indore under sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971 Clauses (2), (3), (4), (5), (7), (8), (11), (12) of section 2(B)(5), (10) and Clauses 3.5, 3.7, 3.90 and 9.13 of section 3 and Clause 3.24, 3.25, 3.27 of section 5, Clause 3.31 of section 6 and clause 3.57 of section 11 Flag Code of India 2002 and section 109 of the Indian Penal Code.

2. Short facts of the case are that the respondent No. 2 Shailendra Sharma filed a private complaint on 22-9-2007 before the learned Court below alleging that on 16-8-2007 a programme was arranged by accused Rakesh Rajpal and Ashok Rajpal at their premises M/s Rajpal Abhikaran Private Limited, dealers of Toyota vehicles and in that programme petitioner was invited as guest, who was suppose to give keys of Innova Cars to the persons who have purchased the same. In the complaint it was alleged that in the business campus of M/s Rajpal Abhikaran Pvt. Ltd. wherein the said programme was arranged, some National Flags were hoisted. It was alleged that even after the sunset, the National Flags continued to fly in the premises. It was alleged that in the said function higher authorities of the police department were also present. It was further alleged that there was a huge gathering in the function and when the fact was brought to the notice to the accused Rakesh Rajpal and Ashok Rajpal, than the National Flags were pull down in a disrespectful and insulting manner. It was alleged in the complaint that to allow to fly the flag after the sunset and to pull down the same in disrespectful manner amounts to an offence. In the complaint it is further alleged that news in that regard was flashed in the news papers dated 17-8-2007. It was alleged that the petitioner who is a film hero and was the brand ambassador of Toyota, who was present as chief guest has also committed the alleged offence. It was prayed that after taking cognizance of the offence the petitioner and other accused persons be noticed and after recording of evidence they be convicted.

3. In support of the complaint respondent No. 2 Shailendra Sharma examined himself under sections 200 and 202 Criminal Procedure Code as AW/1 and also examined Arvind Sharma as AW/2. Upon the complaint vide order dated 27-9-2007 the learned trial Court took the cognizance of the offence and issued bailable warrant, hence this petition.

4. Learned senior counsel for the petitioner argued at length and submits that the complaint filed by the respondent No. 2 against the petitioner deserves to be quashed as no offence is made out against the petitioner.

5. Section 2 of the Prevention to National Honour Act, 1971 reads as under:-

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 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.

6. Relevant provisions of Flag Code of India, 2002 for which the cognizance has been taken reads as under:-

2.2 A member of public, a private organization or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise. Consistent with the dignity and honour of the National Flag -

(ii) a damaged or dishevelled Flag should not be displayed.

(iii) the Flag should not be flown from a single masthead simultaneously with any other flag or flags;

(iv) the Flag should not be flown on any vehicle except in accordance with the provisions contained in section IX of Par