IMPORTANT POINT
The intention behind an act is essential in determining whether it constitutes an insult under the Prevention of Insults to National Honour Act, 1971.

ORDER :

P.V. Kunhikrishnan, J.

An artistic picturisation of the father of the Nation with an Indian flag by a Cartoonist in connection with the celebration of the 70th Independence Day of India is treated as an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971 [for short, ‘the Act 1971’]. The petitioners are the accused in C.C.No.199/2018 on the file of Judicial First Class Magistrate Court-IV, Kozhikode arising from Crime No.634/2017 of Nadakkavu Police Station. The final report is filed alleging an offence punishable under Section 2 of the Act 1971.

2. The facts which lead to the registration of the above crime is like this: The defacto complainant, who is the General Secretary of Bharatiya Janatha Party, Edakkad Area Committee filed a complaint before the Sub Inspector of Police, Nadakkavu on 23.08.2017 stating that, in a Malayalam daily dated 15.08.2017, a cartoon is published with a National Flag and the father of the Nation and the same looks like the number ‘70’. According to the defacto complainant, the number ’70’ also looks like the picture of the father of the Nation with the National Flag. According to the defacto complainant, the top side of saffron portion of the National Flag is outlined with a black line. According to the defacto complainant, this black colour is purposefully given to dishonour the National Flag. According to the defacto complainant, he and the other public could not understand the reason for drawing a black line on the top of the saffron colour of the National Flag. Therefore, it is submitted that, there is a violation of the Act 1971. Based on the above complaint, Nadakkavu police registered Crime No.634/2017. Thereafter, a final report is filed alleging the offence punishable under Section 2 of the Act 1971. The petitioners are (i) Printer and Publisher of Malayala Manorama, Kottayam (ii) Editorial Director, Malayala Manorama, Kottayam, (iii) Managing Editor, Malayala Manorama, Kottayam, (iv) Editor, Malayala Manorama, Kottayam and (v) Chief Editor, Malayala Manorama, Kottayam. According to the petitioners, even if the entire allegations are accepted, no offence is made out against the petitioners and there is no intention to insult the National Flag or the father of the Nation.

3. Heard learned counsel for the petitioners and the Public Prosecutor.

4. The counsel for the petitioners submitted that the petitioners are the Printer and Publisher, and Editors of Malayala Manorama, which is one of the main Malayalam daily publishing from Kerala. The counsel submitted that Malayala Manorama has got a tradition and it will never disrespect the National Flag or the father of the Nation and no readers of Malayala Manorama will think like that. The counsel for the petitioners submitted that the intention of the petitioners in picturising the father of the Nation with the National Flag is important to find out whether the offence under Section 2 of the Act 1971 is attracted or not. The counsel also submitted that the Malayala Manorama published articles in connection with the celebration of the 70th anniversary of the Independence of India. The editorial page of the newspaper dated 15.08.2017 is produced along with the Criminal Miscellaneous Case, in which several famous persons stated about the achievements of India after 70 years of Independence. A Cartoonist attached to the newspaper depicts the 70th anniversary of the Independence in his own way with his freedom as an artist. According to the counsel, the black colour on the top of the saffron is only to show the top portion of the number ‘7’ and ‘0’ is used to depict the image of the father of the Nation. There is no dishonour either to the father of the Nation or to the National Flag, is the submission. The Public Prosecutor submitted that the contention raised by the petitioners are all matters of evidence and submitted that, this Court may not interfere with the same at this stage. The Public Prosecutor submitted tha