Vinodkumar Babubhai Chauhan vs State Of Gujarat
2021 Latest Caselaw 5997 Guj

     R/CR.MA/3119/2014                                       JUDGMENT DATED: 15/06/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/CRIMINAL MISC.APPLICATION NO. 3119 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL sd/-

========================================================

1      Whether Reporters of Local Papers may be allowed to see the Yes
       judgment ?

2      To be referred to the Reporter or not ?                           No

3      Whether their Lordships wish to see the fair copy of the judgment No
       ?

4      Whether this case involves a substantial question of law as to the No
       interpretation of the Constitution of India or any order made
       thereunder ?

========================================================
                         VINODKUMAR BABUBHAI CHAUHAN
                                      Versus
                            STATE OF GUJARAT & 1 other(s)
========================================================
Appearance:
MR GAURAV K MEHTA(5227) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR KAIVAN K PATEL(6338) for the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
========================================================
     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
                      Date : 15/06/2021

                                  ORAL JUDGMENT

1. Heard learned Advocate Shri Gaurav Mehta for the applicant,

learned APP Ms. M.D. Mehta for respondent no.1- State and learned

Advocate Shri Kaivan K. Patel for respondent no.2.

2. By way of this application the applicant seeks quashment of FIR

being C.R. No. II- 87 of 2014 registered with Vijapur Police Station on

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

16.02.2014 alleging offence punishable under Section 3.6 of the Prevention

of Insults to National Flag Act, 1971 [ (sic) Prevention of Insults to

National Honour Act, 1971]. The allegation levelled in the impugned

complaint in brief being that the complainant at the relevant point of time

was working as in charge Commanding Officer of Home Guard Unit at

Vijapur where the applicant-accused was working as part-time Peon with the

said Unit. It is alleged that on 26.01.2014 i.e. on Republic Day, the

respondent no.2- complainant had gone to Mamlatdar Office and he had

instructed the applicant-accused and one another employee being part-time

Peon to hoist the National Flag at 9.00 a.m in the morning and lower the

National Flag down at evening after the time is over. It is alleged that both

the employees had shown negligence in duty and did not lower the National

Flag on 26.01.2014 and they lowered the National Flag on 27.01.2014 at

12.30 hours. Upon asking, it was informed by the said employee that due to

inadvertence National Flag had not been lowered down. Thus alleging the

impugned complaint had been preferred.

3. Learned Advocate has submitted that the applicant was not allowed

to join the duty from 24.10.2013 onwards and copy of muster roll obtained

by the applicant shows that after 24.10.2013 the applicant had not signed

muster roll. The muster roll is also annexed with the petition. Learned

Advocate thus submitted that on 26.01.2014 the applicant was not on duty

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

and therefore the allegations levelled in the complaint are false and

fabricated.

4. Learned Advocate Shri Mehta on behalf of the applicant -accused has

submitted without prejudice to what has been submitted in the foregoing

paragraph that the complaint was absolutely malafide inasmuch as the

complainant Commanding Officer by way of office order dated 25.10.2013

had passed an order whereby all the duties of the Unit assigned to the part

time Clerk were recalled and distributed to the five NCOs named in the said

order. Learned Advocate therefore submits that the applicant was not at all

responsible nor he could be entrusted with such responsibilities, since all

responsibilities were distributed to other persons.

4.1. Learned Advocate Shri Mehta has also submitted that incident

alleged in the complaint had occurred on 26.01.2014 whereas the complaint

had been registered on 16.02.2014. Therefore the complaint deserves to be

quashed on the ground of delay also. Thus submitting learned Advocate Shri

Mehta has requested this Court to quash the impugned complaint.

5. On the other hand learned APP has submitted that since a FIR is

lodged whereby prima facie disrespect has been shown to the National Flag,

therefore the authorities had taken action by registering the complaint in

accordance with law.

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

6. Learned Advocate Shri Kaivan Patel on behalf of respondent no.2-

original complainant has supported the complaint and has submitted that

the applicant and one another employee had been entrusted with hoisting

the National Flag and lowering the National Flag and whereas on Republic

Day in the year 2014 the said employees including the present applicant had

not lowered the National Flag after sunset and thus Criminal Complaint was

rightly filed and this Court may not interfere with the complaint at all.

7. Heard learned Advocates for the parties who have not submitted

anything further.

8. At the outset it is required to be mentioned that the offence alleged in

the complaint, translated from Gujarati as written in the complaint reads as

thus:

"Offence punishable under Section 3.6 of the Prevention of Insults

to National Flag Act.

8.1 It is required to be noted that there is no Act named as such and the

relevant Act which governs the field with regard to maintaining of the

respect of the National Flag and the offences with regard to the National

Flag are found in the Prevention of Insults to National Honour Act, 1971

and whereas all laws, practices and instructions for the guidance for benefit

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

of all concerned are brought together in the Flag Code of India, 2002.

8.2 Section 2 of the Act with regard to insult to Indian National Flag is

quoted hereinbelow for benefit;

"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 shows disrespect to or 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, representation 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.

Explanation 4- The disrespect to the Indian National Flag means and includes-

(a) a gross affront or indignity offered to the Indian National Flag ; or

(b) dipping the Indian National Flag, in salute to any person or thing; or

(c) flying the Indian National Flag at half-mast except on occasions on which the Indian National Flag is flown at half- mast on public buildings in accordance with the instructions issued by the Government; or

(d) using the Indian National Flag; as a drapery in any form whatsoever except in State funerals or armed forces or other para-military forces funerals; or

(e) using the Indian National Flag-

      R/CR.MA/3119/2014                                  JUDGMENT DATED: 15/06/2021




                  (i)    as a portion of costume, uniform or accessory of any
                         description which is worn below the waist of any
                         person; or

                  (ii)   by embroidering or printing it on cushions,

handkerchiefs, napkins undergarments of any dress materiel: or]

(f) putting any kind of inscription upon the Indian National Flag;

or

(g) using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence Day; or

(h) using the Indian National Flag as covering for a statue or a monument or a speaker's desk or a speaker's platform; or

(i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or

(j) draping the Indian National Flag over the hood, top and sides or back or on a vehicle, train, boat or an aircraft or any other similar object.; or

(k) using the Indian National Flag as a covering for a building; or

(l) intentionally displaying the Indian National Flag with the "saffron" down.]

From the quoted portion herein above, more particularly Explanation

4 lists the acts by which the Indian National Flag is disrespected. The said

explanation does not refer to the Act of not lowering the National Flag after

sunset being so disrespectful which would result in an offence which is

punishable for a term which may extend to three years as mentioned in

Section 2 of the Act, as referred to herein-above.

9. The Government of India had promulgated the Flag Code of India

2002 whereby all laws, conventions, practices and instructions with regard to

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

display of the National Flag have been brought together. The Flag Code

of India of Part III states regarding the hoisting/display of the National Flag

by the Central and State Government and their organizations and agencies.

Section 3.6. of the Code reads as under:

"3.6 Where the practice is to fly the Flag, on any public building, it shall be flown on that building on all days including Sundays and holidays and except as provided in this Code, it shall be flown from sun-rise to sun-set irrespective of weather conditions. The Flag may be flown on such a building at night also but this should be only on very special occasions."

9.1 Perusal of Section 3.6 of the Code makes it clear that a positive

mandate is imposed inasmuch as the said section makes it mandatory,

except as provided in the Code to fly the National Flag from sunrise to

sunset, including on Sundays and National Holidays on public buildings

where there is a practice to fly the National Flag, irrespective of the weather

conditions. Furthermore there is no express prohibition found in Section 3.6

as regards flying of the National Flag at night and whereas it is mentioned

that the National Flag can be flown at night on special occasions.

Section IV Part III and Section V of part III states the conditions

whereby the Flag is stated to be incorrectly displayed and further lists the

conditions whether the Flag is stated to be misused. Neither Section IV nor

Section V of Part III i.e. with regard to incorrect display and misuse state

flying of National Flag at night being prohibited or being an offence much

less a cognizable offence resulting in lodgement of FIR.

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

10. Thus while the Prevention of Insults to National Honour Act, 1971

does not list Flying of National Flag after sunset as one of the disrespects

which could be shown to the National Flag as mentioned in Explanation 4

to Section 2 the Flag Code also does not prohibit flowing of the National

Flag after sunset nor does it penalize flying of National Flag after sunset.

The Flag Code of India 2002 makes it desirable not to fly the National Flag

after sunset. As such even the same has to be culled out from an overall

reading of Section 3.6 of the Code. Thus in neither of the relevant acts,

flying of the National Flag after sunset is a cognizable offence.

10.1 Therefore it becomes clear that no cognizable offence appears to

have been committed by the applicant even if the allegations in the

complaint are taken as true on their face value.

11. As far as allegation are concerned on its own merit, this Court finds

substance in the submission of learned Advocate Shri Mehta more

particularly looking to the documents annexed by the applicant in the

petition being order dated 24.12.2013 as well as copy of the muster roll that

the complaint is a clear case of harassment. It clearly appears that on the

said date the applicant was not on duty and the muster roll clearly showing

that the applicant had not signed after October 24, 2013. Furthermore,

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

duties and responsibilities assigned to the applicant herein had been

reassigned to the NCOs. Moreover when such averments have been made

in the reply no rejoinder has been forthcoming from the complainant.

Therefore this Court has no option but to treat the averments as

uncontroverted and thus as true and correct.

12. The Supreme Court in case of State Of Haryana And Ors vs Ch.

Bhajan Lal And Ors 1992 Supp. (1) SCC 335 more particularly paragraph

102 has listed the illustration where inherent power available to this Court

under Section 482 of the Cr.P.C. could be exercised to prevent abuse of

process of any Court or otherwise the same is reproduced hereinbelow for

benefit.

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuseof the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

12.1 Considering the allegation levelled in the FIR in view of the law laid

down by the Supreme Court in case of State of Haryana And Ors vs Ch.

Bhajan Lal And Ors (supra), this Court finds that even if the allegation

levelled against the applicant is accepted in its entirety it does not constitute

any offence and thus no case is made out against the present applicant and

the impugned complaint deserves to be quashed.

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

13. Furthermore, this Court is also of the opinion that the proceeding is

manifestly attended with malafide and the proceeding is maliciously

instituted with an ulterior motive for wreaking vengeance on the accused

more particularly since it appears that neither the applicant was saddled

with any responsibilities with regard to National Flag rather his

responsibility being shifted to other officers and the applicant not having

attended the duty after 24.10.2013 voluntarily or otherwise as seen from the

muster roll.

14. Furthermore it is required to be observed at this stage that in-charge

Commanding Officer being the higher authority may assign duties to his

subordinates but at the same time it is also expected that such Officer has to

maintain supervisory control over his subordinate. The way the complaint

has been narrated treating the allegations levelled in the complaint as true

and correct it appears that the complainant after having assigned duties to

his sub-ordinates is under no obligation to keep track whether the

subordinates are doing the duties properly or not, more particularly since the

allegations are with relation to hoisting and lowering of the National Flag on

Republic Day, which for normal citizens and more so the persons of

uniformed forces is one of the most important day of the year. That it is

rather disturbing to note that the Commanding Officer, on such an

R/CR.MA/3119/2014 JUDGMENT DATED: 15/06/2021

important occasion, rather than taking the privilege and responsibility of

hoisting the National Flag upon himself or depute a reasonably senior and

competent junior had left the hoisting and lowering of the National Flag to

a subordinate who was a part-time employee. As such in the opinion of this

Court this aspect requires introspection at the end of the complainant and

appropriate action by the authorities heading the Home Guard Department.

This Court does not feel it appropriate to state anything further on this.

15. Thus in view of the discussion finding and conclusion recorded

hereinabove, impugned FIR being C.R. No. II- 87 of 2014 registered with

Vijapur Police Station on 16.02.2014 alleging offence punishable under

Section 3.6 of the Prevention of Insults to National Honour Act, 1971 is

quashed qua the applicant. Rule is made absolute to the above extent.

A copy of this judgement be sent to the Director General ( Home

Guards), State of Gujarat for information as regards observations made in

para 14.

sd/-

(NIKHIL S. KARIEL,J) niru