ORDER

1. Inherent powers of this Court u/S.482 CrPC are invoked seeking quashment of FIR dated 16.8.2019 bearing Crime No. 504/2019 registered at Police Station Kailaras, District Morena alleging offences punishable u/Ss.2 and 3 of the Prevention of Insults to National Honour Act, 1971 against both the petitioners.

2. The skeletal facts attending the present case are that at the relevant point of time petitioner No.2 was the elected President of Nagar Panchayat Kailaras, District Morena. It is alleged in the FIR that on the Independence Day i.e. 15.8.2019, petitioner No.2 along with her husband-petitioner No.1 had hoisted the National Flag which continued to remain hoisted till 9:15 pm of 16.8.2019 and as such intentionally insulted the National Flag. FIR further alleges this incident of insult to National Flag was witnessed by Satendra Singh, Omkar Dubey, Pradeep Ghuraiya, Suresh Upadhyay, Narhari Sharma and Arun Kumar. Offence punishable u/S.2 r/w 3 of the Prevention of Insults to National Honour Act, 1971 (for brevity, “1971 Act”) is alleged.

3. Learned counsel for petitioners has submitted that even if the allegations contained in the FIR are treated to be true, they do not constitute any offence as alleged. Learned counsel for petitioners has relied upon various judgment of apex Court in State of Haryana and others v. Bhajanlal and others [1992 Supp (1) SCC 335] Union of India v. Naveen Jindal and another [(2004)2 SCC 510] Ganesh Lal Bathri v. State of M.P. [2003(2) JLJ 296], Amgonda Vithoba Pandhare v. Union of India : LAWS (BOM), (2012) 1 138, Umesh Kishanrao Chopde v. State of Maharashtra and Anr., 2012 CrLJ 3142 and the Single Bench decision of this Court rendered at Indore Bench in MCrC. No.5230/2012 (Dr. Vikram Dutta v. State of M.P. and Anr.) decided on 25.1.2018, in which the abovementioned judgments have been relied upon.

4. To effectively adjudicate the issue involved, this Court reproduces the relevant provision of sections 2 and 3 of 1971 Act as below :-

“2. 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 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. Explanation 1 -- Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section.

Explanation 2 -- The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible re- presentation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance.

Explanation 3 --The expression "public place" means any place intended for use by, or accessible to, the public and includes any public conveyance.

3. Prevention of singing of Indian National Anthem, etc. Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”

4.1 Section 2 attracts punishment of imprisonment for a term of three years or with fine or both when a person is found in public place within public view burning mutilating, defacing, defiling, disfiguring, destroying, trampling upon or bringing or otherwise bringing into contempt by words spoken or written or by act begin the Indian National Flag. Allegation against petitioners is of leaving National Flag at hoisted position even during the night i.e. between suns