Shaikh Sohail Ahmed And Anr vs The State Of Maharashtra And Anr
2017 Latest Caselaw 173 Bom

                                                  1261.2016 Cri.WP.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1261 OF 2016 


          1.       Shaikh Sohail Ahmed,  
                   Age 30 yrs, Occ: Incharge Head Master 
                   In Hakam Urdu Primary High School, 
                   At Chikalthana,  
                   Tq and Dist. Aurangabad.  

          2.       Sanjivani Raosaheb Pathare,  
                   Age 39 Yrs Occu In charge Head Mistress 
                   In Zubeda Yasin Secondary School,  
                   At Chikalthana,  
                   Tq and Dist Aurangabad.     PETITIONERS

                           VERSUS 

          1.       The State of Maharashtra,
                   Through - Police Inspector,  
                   CIDCO, MIDC, Police Station,  
                   Tq and District : Aurangabad 

          2.       Manisha Uttam Kharat,  
                   Age Major,  
                   Occu: Political Worker 
                   R/o Shivalaya Chowk, Bajaj Nagar, 
                   Waluj Tq and District : Aurangabad. 
                                                  RESPONDENTS
                                ...
          Mr.S.R.Kolhare, Advocate for the petitioners 
          Mr.S.G.Karlekar,   APP   for   the   Respondent/ 
          State
          Mr.M.D.Gitte, Advocate for respondent no.2
                                ...
                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 16.02.2017 Pronounced on : 01.03.2017

1261.2016 Cri.WP.odt

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Petition is filed with the

following prayer:

B. By Writ of Certiorari or any other Appropriate writ OR direction like nature, The Charge sheet dated 21st January 2015 and Complaint i.e. S.C.C. No 301331 of 2015, Pending before the file of Learned XVIII. J.M.F.C Aurangabad under the section 2 of the Preventions of Insults of National Honor Act 1971, C.R.No II 55/15 may kindly be quashed.

4. Brief facts for filing this Petition

are as under:

Petitioner no.1 is the Incharge Head

1261.2016 Cri.WP.odt

Master of Hakam Urdu Primary School situated

at Chikalthana, Taluka and District

Aurangabad. Petitioner no.2 is the Incharge

Head Mistress in Jubeda Yasin High School at

Chikalthana, Taluka and District Aurangabad,

run by the Minority Education Society, namely

All Sisters Education Society situated at

Roshan Gate, Taluka and District Aurangabad.

Respondent no.2, who claims to be the

President of Maharashtra Pradesh Congress at

Waluj, Taluka and District Aurangabad on 17th

September, 2014, filed a complaint before

respondent no.1, alleging therein that,

petitioners have not conducted the flag

hoisting ceremony in respect of Marathwada

Mukti Sangram and declared holiday.

5. The Investigation Officer, after

recording the statement of complainant on 1st

December, 2014, has registered Crime No.II

55/2014 under Section 2 of the Prevention of

Insult to National Honour Act, 1971 [for

1261.2016 Cri.WP.odt

short 'the Act of 1971']. Respondent no.1,

without making any investigation, has

straightway filed charge sheet for the

offence under the Act of 1971 without

considering the fact that the flag hoisting

of Marathwada Mukti Sangram is not covered

under the Act of 1971.

6. The learned counsel appearing for

the petitioners submits that the learned

Magistrate has taken cognizance of the

offence without applying mind. It is further

submitted that petitioner nos.1 and 2 have

conducted the flag hoisting ceremony at the

Head Quarter of the petitioners' School,

which is situated at Ravindra Nagar, Taluka

and District Aurangabad and the flag hoisting

of the Marathwada Mukti Sangram is not at all

covered under the provisions of the

Prevention of Insult to National Honour Act,

1971, is only restricted to the Indian

National Flag.

1261.2016 Cri.WP.odt

7. Pursuant to the notices issued to

the respondents, respondents have caused

appearance in the Petition.

8. It appears from the perusal of the

pleadings in the Petition that the

petitioners have attended the flag hoisting

at the Head office. Be that as it may, in the

present Writ Petition, the petitioners have

given following undertaking by way of

affidavit, which reads thus:

1 Petitioners hereby undertake to abide by the constitution and respect it ideals and institutions, the National Flag and the National Anthem as provided in Article 51-A (Fundamental duties).

2 That, these petitioners have conducted flag hoisting ceremony on the Occasion of Marathwada Mukti Sangram on 17th September 2014, at the Head Quarter of the Management,

1261.2016 Cri.WP.odt

situated at Ravindranagar, Kaktkat Gate Tq and Dist Aurangabad, thereafter, they have conducted flag hoisting of ceremony on the occasion of 17th September 2015 and 17th September 2016 at their respective schools.

4. That, Petitioners hereby undertake to strictly abide by their fundamental duties by conducting flag hoisting to the ceremony of Marathwada Mukti Sangram and other National Ceremony i.e. 26th January and 15th August by conducting flag hoisting without failure.

9. In our considered view, as stated by

the petitioners, they have attended the flag

hoisting at the Head Quarter and henceforth

they are ready to abide by undertaking, which

is reproduced herein above. In that view of

the matter, in order to secure ends of

justice we deem it appropriate to allow the

Writ Petition. The Rule is made absolute in

1261.2016 Cri.WP.odt

terms of prayer clause-B and the W.P. stands

disposed of accordingly.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC