[Cites 20, Cited by 0]

Karnataka High Court

Sri Venugopal B C vs The State Of Karnataka on 21 February, 2026

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

Reserved on : 21.01.2026
R
Pronounced on : 21.02.2026

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF FEBRUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.11694 OF 2024

BETWEEN:

SRI VENUGOPAL B.C.,
S/O CHANNAPPA M.B.,
AGED ABOUT 43 YEARS
PRINCIPAL AT
GOVERNMENT HIGH SCHOOL
NAGASANDRA
BENGALURU - 562 123.

... PETITIONER
(BY SMT.RADHIKA K., ADVOCATE FOR
SRI THIMMEGOWDA N., ADVOCATE)

AND:

1 . THE STATE OF KARNATAKA
BY BAGALAGUNTE POLICE STATION
BENGALURU - 560 073
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
2

2 . SRI B.M.CHIKKANNA
S/O LATE C.MUNIYAPPA
AGED ABOUT 56 YEARS
PRESIDENT
HUMAN RIGHTS
PROTECTION COMMITTEE
R/AT: NO. 96
AACHARYA CLG ROAD
GANAPATHINAGAR
CHIKKABANAWARA
BENGALURU - 560 090.
... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI T.R.RAMAKRISHNA, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BNSS, 2023 PRAYING TO QUASH THE ENTIRE FIR IN
CR.NO.377/2024 PENDING ON THE FILE OF THE XXXI ACJM,
BANGALORE CITY REGISTERED BY BAGALUGUNTE POLICE, FOR
THE ALLEGED OFFENCE U/S 2 OF PREVENTION OF INSULT TO THE
NATIONAL HONORS ACT, 1971.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.01.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner is before this Court calling in question

registration of a crime in Crime No.377 of 2024 registered for

offences punishable under Section 2 of the Prevention of Insult to

National Honors Act, 1971 (hereinafter referred to as 'the Act' for

short).

2. Heard Smt K. Radhika, learned counsel appearing for the

petitioner; Sri B.N.Jagadeesha, learned Additional State Public

Prosecutor appearing for respondent No.1 and

Sri T.R. Ramakrishna, learned counsel appearing for respondent

No.2.

3. Facts, in brief, germane are as follows:-

The petitioner is the Principal of Bagalagunte Government

High School, Nagasandra and claims to be a reputed teacher. On

02-10-2024 celebrations of Gandhi Jayanthi at Bagalagunte
4

Government High School, Nagasandara took place. WhatsApp

status of all the students and many others are found with regard to

the celebrations of Gandhi Jayanthi at the school premises. The 2nd

respondent notices that in the whatsapp status, the petitioner is

standing with his slippers on the National Flag. Alleging that the

petitioner has disrespected the Indian National Flag, seeks action to

be taken against him by registering a complaint against the

petitioner on 05-10-2024. This becomes a crime in Crime No.377 of

2024 as obtaining under Section 2 of the Act. Registration of crime

drives the petitioner to this Court in the subject petition.

4. The learned counsel appearing for the petitioner

Smt. Radhika K, would vehemently contend that the mobile phone

of the petitioner was with the students. The students have edited

the picture of the petitioner and placed him above the National

Flag. He had no intention to insult the National Flag nor had any

knowledge about what was being circulated by the students. It is

her submission that petitioner is a very strict teacher. Therefore,

the students have an animosity against him and have edited his

image only to create embarrassment to the petitioner. The
5

petitioner is a reputed teacher and has been the Principal of

Bagalagunte Government High School for 7 to 8 years. He has great

respect to the National Flag and he could not even imagine of

disrespecting the National Flag. There is no instance of antecedent

except the one that is now projected in the subject crime. She

would further contend that the 2nd respondent/complainant has an

axe to grind against the petitioner and has therefore, registered the

subject crime. The Police even without looking to the pictures have

registered the crime.

5. Per contra, the learned Additional State Public Prosecutor

Sri B.N.Jagadeesha appearing for the 1st respondent would

vehemently refute the contentions by contending that according to

the picture the petitioner is standing on the National Flag. Whether

the students have edited and posted it or otherwise must

necessarily mean that the case has to be investigated into. It is the

say of the petitioner that his mobile phone was given to the

students and the students have circulated the picture by editing, it

is a disputed question of fact. Therefore, he would contend that it is
6

not a case where this Court should interfere in exercise of its

jurisdiction under Section 482 of the Cr.P.C.

6. The learned counsel appearing for the complainant would

also toe the lines of the learned Additional State Public Prosecutor

in contending that it is a clear insult to the National Flag and,

therefore, the investigation in the least must be permitted in the

case at hand.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

8. The position of the petitioner as Principal of Bagalagunte

Government High School, Nagasandra is a matter of record. Gandhi

Jayanthi celebrations were held in the institution is again a matter

of record. The entire issue now gets triggered from registration of

the complaint by the 2nd respondent who claims to be the President

of Human Rights Protection Committee, a registered organization.

The complaint reads as follows:
7

"ರವ ೆ,
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8

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ನಂ.688/2024 ರ : ನಮೂwPjೆ."

The complaint becomes a crime in Crime No.377 of 2024 for

offences punishable under Section 2 of the Act. Section 2 of the Act

reads as follows:

"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.
9

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--

(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 or any
dress material; 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
10

occasions including the Republic Day or the
Independence day; or
(h) using the Indian National Flag as covering for a
statute 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 subject; 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.
(Emphasis supplied)

Section 2 mandates that 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 the Indian National Flag or the

Constitution of India or any part thereof shall be punished with

imprisonment which may extend up to 3 years. Explanation-4 has

several sub-explanations. Sub-explanation (i) of Explanation-4

mandates that allowing the Indian National Flag to touch the

ground or the floor or trail in water intentionally would become an

offence under Section 2. This provision has borne interpretation by

several High Courts. Therefore, before embarking upon
11

consideration of the case on its merit, I deem it appropriate to

notice the jurisprudence on the issue.

9.1. The Apex Court in V.K. NASWA v. UNION OF INDIA1

has held as follows:

".... .... ....

3. The issue involved in the case has been dealt with by this
Court elaborately in Union of India v. Naveen Jindal [(2004) 2
SCC 510 : AIR 2004 SC 1559] interpreting the clauses contained
in the Flag Code, 2002 and explained as under what
circumstances and in what manner the national flag can be
hoisted by the individuals. The Flag Code is divided into three
parts. Part II provides for the mode and manner of
hoisting/displaying/use of national flag by the members of
public, private organisations, educational institutions, etc. From
reading of clause 2.1 of Section 1 appearing in Part II of the Flag
Code, it is evident that:

"2.1. There shall be no restriction on the display of the
national flag by members of general public, private
organisations, educational institutions, etc. except to the
extent provided in the Emblems and Names (Prevention of
Improper Use) Act, 1950 and the Prevention of Insults to
National Honour Act, 1971 and any other law enacted on the
subject."

This Court has further held that the Flag Code is not the law
within the meaning of Article 13(3)(a) of the Constitution of
India. However, the right to fly the national flag is a
fundamental right. Further, the Flag Code provides
guidelines to be observed for preservation of dignity and
respect to the national flag.

4. In view of the above, the national flag is both a
benediction and a beckoning. Thus, in case a person

1
(2012) 2 SCC 542
12

shows any kind of disrespect to the national flag or does
not observe the terms contained in the Code, legal action
may be taken against him under the relevant statutory
provisions. However, these are the questions of fact as to
whether on a particular event a particular person has
shown any kind of disrespect to the national flag. For that
purpose, the petitioner has already filed complaint before the
authorities concerned. Thus, he cannot pursue the remedy
simultaneously by filing the writ petition and on that count the
petition is liable to be dismissed. More so, such a factual
controversy cannot be examined in a petition under Article 32 of
the Constitution of India."

(Emphasis supplied)

The Apex Court holds that the National Flag is both a benediction

and a beckoning. Failure to show proper respect renders the

delinquent to legal action.

9.2. In the case of VIKRAM DATTA V. STATE OF M.P2., the

High Court of Madhya Pradesh has held as follows:

".... .... ....

7. The first information report reflects that Station House
Officer has received the information about the Flag in existence
on the Flag-post in the night at 1.30 am. The Flag was there on
the Flag-post. Section 2 of the Act of 1971 reads as under:

"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

2
2018 SCC ONLINE MP 1802
13

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."

8. Undisputedly, the Flag was on the Flag-post at night
and it should have been taken off before sunset. The person who
was in-charge to do this exercise was certainly the Peon -
Ishwarlal, who during pendency of this petition u/s. 482 of
Cr.P.C. expired. There is no evidence on record to establish that
it was the duty of the petitioner to hoist the Flag every morning
and unfurl in the evening before sunset. Even in the High Court,
it is not the duty of Hon'ble the Chief Justice or the pusne (sic :
puisne) Judge to hoist and unfurl the Flag before sunset. The
duty has been assigned to a particular employee who is doing
the job. In the present case, there is no documentary
evidence on record to establish that the said duty was
assigned to the Principal of the College to hoist the Flag
in the morning and to unfurl in the evening before sunset.
There is no mens rea on the part of the petitioner.

9. The Bombay High Court in Amgonda Vithoba
Pandhare v. Union of India : LA WS (BOM) 2012 1138, has dealt
with the Act of 1971. Para 6 to 10 of the aforesaid judgment
reads as under:--

"6. We have gone through the averments made in the
complaint and we have also perused the Prevention of Insults
to National Honour Act, 1971 and the provisions of Flag Code
of India, 2002. So far as Section 2 of the said Act of 1971 is
concerned, it reads as under:--

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
14

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 by 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;
(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 paramilitary forces funerals; or
(e) using the Indian National Flag as a portion of costume
or uniform of any description or embroidering or
printing it on cushions, handkerchiefs, napkins or any
dress material; 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
15

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

7. Explanation 4 mentions various acts of dishonour
in clauses (a) to (1). Perusal of the said section clearly
reveals that one of the essential ingredients of the said
offence is that disrespect, contempt of the flag should
be intentional. Similarly, Explanation 4 gives various
instances of disrespect to the Indian National Flag. The
offence of not lowering down the flag after sunset
does not fall either in the various instances which are
mentioned in Explanation 4 or in Section 2 of the said
Act. The averments in the complaint, therefore, even if
they are accepted at its face value, does not constitute
an offence within the meaning of Section 2 of the said
Act.
8. So far as the Flag Code is concerned, the said
Flag Code is not an Act nor is it issued under any of the
statutory provisions of the said Act and, therefore, it is
not a statutory law enacted by the competent
legislature.
9. The Apex Court had occasion to consider whether the
Flag Code has any statutory course and in the case of Union
of India v. Navin Jindal, decided on 23.1.2004 in Civil Appeal
No. 453 of 2004, after going through various sections and
parts of the Flag Code, the Apex Court came to the
conclusion that the Flag Code contains executive instructions
of the Central Government and, therefore, it is not a law
within the meaning of Article 13(3)(a) of the Constitution of
India. In view of the ratio of the judgment of the Apex Court,
therefore, it cannot be said that violation of the instructions
which are given in the Flag Code would amount to an offence
which is punishable under Section 2 of the said Act.

10. Another factor which also needs to be taken into
consideration in the present case is that the petitioner was
Head Master of the school and was proceeding to go to his
school for lowering down the flag. However, while going to
the school, on the way, he collapsed and had to be admitted
in the hospital and he had instructed the other person to
lower down the flag properly. This is not disputed by the
respondent prosecution. This being the position, it cannot
be said that the petitioner intentionally wanted to
insult the honour of the flag and lastly, complaint
appears to have been filed by respondent No. 5, a
person who was a political opponent of the petitioner
16

and obviously it appears to have been filed with an
malafide intention to harass the petitioner. In either
case, therefore, the petitioner has made out a good
case for quashing the complaint."

10. In the aforesaid case also, the Flag was not
brought down before the sunset and the Bombay High
Court has held that it cannot be said that the petitioner
intentionally wanted to insult the honour of the Flag. On
the contrary, the person who was the political opponent
lodged the complaint in the matter. In those
circumstances, a case was made out to quash the
complaint.

11. In another case decided by the Bombay High Court
in Umesh Kishanrao Chopde v. State of Maharashtra, 2012 Cri LJ
3142, the Head Master of the school failed to remove the Flag
before sunset. The Bombay High Court in Para 7 and 8 of the
aforesaid judgment, held as under:--

"7. This issue has been decided by the Hon'ble Supreme
Court in (2004) 1 Scale 677, Union of India v. Naveen
Jindal in Civil Appeal No. 453/2004. The Hon'ble Supreme
Court in Paragraphs 28 & 29 held as under:--

"28. Before we proceed further, it is necessary to deal
with the question, whether Flag Code is "law"? Flag Code
concededly contains the executive instructions of the
Central Government. It is stated that the Ministry of Home
Affairs, which is competent to issue the instructions
contained in the Flag Code and all matters relating thereto
are one of the items of business allocated to the said
Ministry by the President under the Government of India
(Allocation of Business) Rules, 1961 framed in terms of
Article 77 of the Constitution of India. The question,
however, is as to whether the said executive instruction is
"law" within the meaning of Article 13 of the Constitution
of India. Article 13(3)(a) of the Constitution of India reads
thus:
"13. (3)(a) "Law" includes any Ordinance, order
byelaw, rule, regulation, notification, custom or usage
having in the territory of Indian the force of law.

example those instructions which are issued as a
supplement to the legislative power in terms of clause (1)
of Article 77 of the Constitution of India. The necessity as
regard determination of the said question has arisen as the
Parliament has not chosen to enact a statute which would
confer at least a statutory right upon a citizen of India to
fly a National Flag. An executive instruction issued by the
appellant herein can any time by replaced by another set
of executive instructions and thus deprive Indian citizens
from flying National Flag. Furthermore, such a question
will also arise in the event if it be held that right to fly the
National Flag is a fundamental or a natural right within the
meaning of Article 19 of the Constitution of India; as for
the purpose of regulating the exercise of right of freedom
guaranteed under Article 19(1)(a) to (e) and (g) a law
must be made."

8. In the present case also, even if it is assumed for the sake
of arguments that the applicant did not remove the flag before
sunset, it could not amount to an offence. The department can
take suitable action against the applicant for not following the
flag code. Since it does not amount to an offence punishable
under Section 2 of the Prevention of Insult to National Honours
Act, 1971, the First Information Report needs to be quashed.
Hence, I pass the following order."

12. The High Court of Kerala has also dealt with a similar
situation in the case of Satheesh Babu P.K. v. State of Kerala :
LAWS (KER) 2016 3115 and held as under:--

"2. The learned counsel for the petitioner has invited the
attention of this Court to the decision rendered by the
Division Bench of the Bombay High Court in Amgonda
Vithoba Pandhare v. Union of India : (2012) 4 Bom CR (Cri)
219, wherein it was held that:

"Explanation 4 gives various instances of
disrespect to the Indian National Flag. The offence
of not lowering down the flag after sunset does not
fall either in the various instances which are
mentioned in Explanation 4 or in Section 2 of the
said Act. The averments in the complaint,
therefore, even if they are accepted at its face
value, does not constitute an offence within the
meaning of Section 2 of the said Act."

3. Their Lordships had relied on the decision of the Apex
Court in Union of India v. Navin Jindal rendered in Civil
18

Appeal No. 453 of 2004, wherein it was held that the Flag
Code contains executive instructions of the Central
Government and, therefore, it is not a law within the
meaning of Article 13(3)(a) of the Constitution of India. It is
a model code of conduct to be followed compulsorily by all
the citizens of India. Apart from that, penal
consequences cannot be invited unless there is a
statutory provision for the same. Going by the
decisions noted supra, it seems that the prosecution in
this case is quite unnecessary. Apart from that, it
seems that there was no intention on the part of the
petitioner to dishonour the National Flag. True that it
was an omission on his part in lowering the National
Flag at or before sunset. The prosecution seems to be
quite unnecessary and, therefore, the same can be
quashed."

13. Similar view has been taken again by the Bombay High
Court in Kalimoddin v. State of Maharashtra : LAWS (BOM) 2015
3324. Our own High Court in J.P. Dutta v. Ravi Antrolia :
LAWS(BOM) 2009 4 109 has dealt with Section 2 of the Act of
1971. It was a case where a private complaint was filed
against the film-producer, wherein the allegation was
that the National Flag has been used to cover the coffins
of soldiers. This Court has quashed the complaint. It is
very unfortunate that such frivolous complaint was filed
for showing the Flag over the coffins of brave hearts who
died for the nation. Learned Single Judge after taking into
account all the facts has quashed the complaint in the
matter.

14. In the case of Naveen Jindal (supra), it has been held
that violation of the Flag Code cannot amount to an
offence under the Act of 1971. In the considered opinion
of this Court as there was no mens rea on the part of the
petitioner, he has not committed any act within the
meaning of Section 2 of the Act of 1971."
19

9.3. In the case of SRI RAVIKUMAR S.B. v. STATE OF

KARNATAKA3, the coordinate bench of this Court has held as

follows:

".... .... ....

6. Having heard the learned Advocates appearing for
parties and on perusal of records it would disclose that National
Flag was kept flying at Changadahalli Grama Panchayat Office on
11.01.2018 after sunset. Hon'ble Apex Court in the case of
UNION OF INDIA vs. NAVEEN JINDAL AND ANOTHER
reported in (2004) 2 SCC 510 has held that Flag Code which
prescribes after sunset Flag has to be lowered down, is not a law
within the meaning of Article 13(3)(a) of the Constitution of
India. It has been held:

"78. Flag Code is not a statute; thereby the
fundamental right under Article 19(1)(a) is not
regulated. But the guidelines as laid down under the
Flag Code deserve to be followed to the extent it
provides for preservation of dignity and respect for the
National Flag. The right to fly the National Flag is not an
absolute right. The freedom of expression for the
purpose of giving a feeling of nationalism and for that
purpose all that is required to be done is that the duty to
respect the flag must be strictly obeyed. The pride of a
person involved in flying the flag is the pride to be an
Indian and that, thus, in all respects respect to it must
be shown. The State may not tolerate even the slightest
disrespect."

7. Paragraph 2.2(xi) of the Flag Code, 2002, mandates
that a member of public, private organization or an educational
institution may hoist/display the National Flag on all days or
occasions, ceremonial or otherwise. Consistent with the dignity
and honour of the National Flag and the Flag so displayed in any
public place should be hoisted from sunrise to sunset,
irrespective of weather conditions. Thus, said clause does not
mandatorily contemplate lowering of National Flag so hoisted

3
CRL. P. 8306/2018, Decided on 26-03-2019
20

after sunset. Section 2 of the Act which has been pressed into
service 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 the Constitution of India or any part thereof, shall be
punished with imprisonment for a term which may extent to
three years, or with fine, or with both."

8. A bare reading of above provision would clearly
indicate that burning, mutilating, defacing, defiling,
disfiguring, destroying, trampling upon or otherwise
showing 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, in any public place or in any place within the
public view, is punishable with imprisonment for a period
of three years, or with fine, or with both.

9. Failure to lower down the National Flag after
sunset no doubt does not fall under "Explanation 4" to
Section 2 of the Act. Under identical circumstances
Bombay High Court in W.P.No.3459/2011 in the matter of
AMGONDA VITHOBA PANDHARE VS. UNION OF INDIA &
ORS. has held that Principal of a school who was charge-
sheeted for not lowering down the National Flag after
sunset would not be liable to be proceeded with as said act
of the accused does not fall under Explanation 4 to Section
2 of the Act for which accused was charge-sheeted. Under
similar circumstances, Kerala High Court in
Crl.Misc.No.1208/2016 in the matter of P.K.SATHEESH
BABU VS. STATE OF KERALA has also held that not
lowering down the National Flag after sunset would not be
an offence under Section 2 of the Act and as such
proceedings initiated against petitioner therein came to be
quashed.
21

10. These two judgments have been consistently
followed by other High Courts including High Court of
Patna in W.P.No.18/2016 in the matter of PREMALATA
KUMARI VS. STATE OF BIHAR AND OTHERS. Hence,
keeping in view the above judgments and provisions of
Prevention of Insults to National Flag Act, 1971, this Court
is of the considered view that failure to lower the National
Flag after sunset would not amount to disrespect to the
National Flag and it would not attract provisions of the Act
invoked."

9.4. In the case of ANJU RATHAUR v. OMPRAKASH

RATHAUR4, the High Court of Chhattisgarh has held as follows:

".... .... ....

7. The question for consideration is whether learned
Magistrate is justified in taking cognizance against the
petitioner under Section 2 of the Act, 1971 ?

8. At this stage, it would be appropriate to notice Section
2 of The Prevention of Insults to National Honour Act, 1971,
which states as under:--

"2. Whoever, in any public place or in any other place
within public view, bums, 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 any part of it, shall be punished with imprisonment
for a term which may extend to three years or with fine, or
with both."
Explanation 1. xxx xxx xxx
Explanation 2. xxx xxx xxx
Explanation 3. xxx xxx xxx
Explanation 4. The disrespect to the Indian National
Flag means and includes
xxx xxx xxx
xxx xxx xxx
4
2019 SCC ONLINE CHH 349
22

(1) intentionally displaying the Indian National Flag with
the "Saffron" down.

9. Thus, in order to prove that the petitioner, being
the President of Janpand Panchayat, Sakti, Distt. Janjgir-
Champa has unfurled the Indian National Flag with the
Saffron down at Pandit Deendayal Stadium, Sakti, the
complainant has to prove the intention on the part of the
petitioner to unfurl the national flag with saffron down
and then only cognizance for offence under Section 2 of
the Act, 1971 can be taken against the person concerned.

10. Reverting to the facts of the case, it is quite vivid that
pursuant to the complaint made by respondent No. 1, learned
Magistrate called for the report from concerned police station, in
which, it has clearly been pointed out that only because of
incorrect tying of rope, the National Flag was unfurled by the
petitioner/accused and such an error was committed by Shri
N.P. Gopal, P.T.I. while preparing the National Flag for hoisting
and for that error, Shri N.P. Gopal, P.T.I. is responsible. The
aforesaid report states as under:--

11. Thus, on the basis of aforesaid report, it is quite
vivid that there was no intention on the part of the
petitioner to unfurl the Indian National Flag with saffron
down and it was the responsibility of that teacher of the
school, as such there was no such disrespect shown by
the petitioner intentionally while unfurling the National
Flag. Thus, there is no material on record to show an
intention or mens rea to disrespect the National Flag by
the petitioner and thereby to undermine the sovereignty
of nation and thus, the petitioner cannot be made to
suffer a trial upon the charges which are not disclosed
from the material on record, as such, the allegations
made in 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/petitioner as held by the Supreme Court in the
matter of State of Haryana v. Bhajan Lal [1992 Supp (1)
SCC 335].
23

12. Accordingly, the initiation of prosecution for the
offence punishable under Section 2 of the Act, 1971 against the
petitioner is hereby quashed. The Cr.M.P. is allowed to the
extent indicated hereinabove."

9.5. In the case of SUSHRISUMAN BAHANJI v. STATE OF

UTTARAKHAND5, the High Court of Uttarakhand has held as

follows:

".... .... ....

12. The Act, 1971 has come in force w.e.f. 23.12.1971.
In the statement of objects and reasons, it is mentioned that
cases involving deliberate disrespect to National Flag, the
National Anthem and the Constitution have come to the notice in
the recent past. Some of these incidents were discussed in both
the Houses of Parliament and members expressed great anxiety
about the disrespect shown to the national symbols.
Government was urged to prevent the recurrence of such
incidents.- Disrespect to the National Flag and the Constitution
or the National Anthem is not punish able under the existing
law. Public acts of insults to these symbols of sovereignty and
the integrity of the Nation must be prevented. Hence, the Bill.

13. At this stage, it is necessary to notice the provision of
section 2 of the Act, 1971. The provision of section 2 of the Act,
1971 is to the following effect:

"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

5
2020 SCC ONLINE UTT 1372
24

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 ex pressing 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 photo graph, or other
visible representation of the Indian National Flag, or of any part
or parts thereof, made of any substance or represented on any
sub stance.

Explanation 3.-- The expression "public place" means any
place in tended 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--

(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 In dependence day;
or
(h) using the Indian National Flag as covering for a
statute 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 subject; or
(k) using the Indian National Flag as a covering for a
building; or
(1) intentionally displaying the Indian National Flag with
the "saffron down."

14. A bare reading of abovementioned provision
would clearly indicate mat burning, mutilating, defacing,
defiling, disfiguring, destroying, trampling upon or
otherwise shown 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, in any public place or in any place within
the public view, is punish able with imprisonment for a
period of three years, or with fine, or with both.

15. Reverting to the present facts, the materials as
available, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute
the alleged offence against the applicants.

16. According to the prosecution, a protest was organized
by the supporters of Baba Ramdev and Bharat Swabhimaan
Trust for not arresting a Journalist by the police. The applicant-
accused Jaideep was the leader of this protest. Women and
other people were also involved in that protest. During
investigation, name of the other applicants- accused persons
came into light. Statements of the informant and witnesses were
recorded by the Investigating Officer under section 161 of the
Code. The learned Counsel for the applicants submits that none
26

of these witnesses had given any clear evidence that the
National Flag was insulted by these applicants-accused persons.
The case or the prosecution is that these applicants showed
disrespect to the Indian National Flag by allowing the National
Flag to touch the ground and by eating on the Flag. The learned
Counsel for the applicants further submits that none of these
witnesses, during investigation, stated that the applicants
allowed the National Hag to touch the ground or they were
eating on the Hag.

17. The learned Counsel for the applicants argued that
the Investigating Officer had filed the charge-sheet on the
grounds that the demonstration and hunger strike were
organized in the leadership of the applicants and it was the
responsibility of these applicants to keep the supporters
disciplined. According to the Investigating Officer, in these
circumstances, the applicants were responsible for insulting the
National Flag.

18. The learned Counsel for the applicants relied
upon the judgment of Madhya Pradesh High Court
in Ganesh Lal Bathri (supra), where the Madhya Pradesh
High Court observed, "Similarly the applicant cannot be
sent up for trial on account of vicarious liability on the
basis of an omnibus statement made by the complainant."

19. In this matter, neither in the F.I.R. nor in the
evidences, collected during the investigation, none of the
ingredients of section 2 of the Act, 1971 had been
pleaded or adduced against the applicants. It is the
contention of the learned Counsel for the applicants that
alleged offence would not come within four corners of
section 2 of the Act, 1971 and entire prosecution is due to
political vendetta, without any legal basis.

20. The learned Counsel for the State fairly
concedes that no direct evidences were found during the
investigation against the applicants that they showed
disrespect to the National Flag.The learned Counsel for
the State also concedes that the individuals shown in the
photographs, attached to the information of the
informant, could not be identified by any person during
27

the investigation. The ingredients of offence punishable
under section 2 of the Act, 1971 are not forthcoming from
the records as against the applicants. The allegations
contained in the F.I.R. and the charge-sheet do not satisfy
the essential ingredients of offence punishable under
section 2 of the Act, 1971 against the applicants. This is a
case where there is a total absence of allegations against
the applicants for the offence punishable under section 2
of the Act, 1971. In the matter on hand, the allegations
made in the F.I.R. as well as the material collected during
the investigation, even if they are taken on their face
value and accepted in their, entirety, do not prima
facie constitute the offence punishable under section 2 of
the Act, 1971 against the applicants accused persons.

9.6. The High Court of Bombay, in the case of DYANDEO

v. STATE OF MAHARASHTRA6, has held as follows:

".... .... ....

10 Relevant portion of Section 2 of the Act reads as
under :

Section 2 : 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 any
part thereof, shall be punished with imprisonment for a
term which may extend to three years, or with fine, or
with both.

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 by any
substance or represented on any substance.

6
CRL. WP 1965/2019, Decided on 09-02-2021
28

Explanation 4 - The disrespect to the Indian National
Flag means and includes- (I) allowing the Indian
National Flag to touch the ground or the floor or trail in
water intentionally; or..'

11. As can be seen, if one takes into consideration
Explanation 4, the very act of drawing a rangoli on the
ground of a National Flag depicting the Ashok Chakra
could be an offence under Section 2 of the Act. However,
the use of word 'intentionally' in that Explanation is
conspicuous and cannot be overlooked. Meaning thereby
that like many offences, there has to be a requisite mens
rea. In absence of which the offence cannot be made out.
Suffice for the purpose to refer to the decisions (supra)
cited on behalf of the petitioners. In these cases the
National Flag remained hoisted even after sun set and
still the Court quashed the proceeding/criminal cases, for
the very reason of absence of material to infer any mens
rea on the part of the accused.

12. Coming back to the facts, though the respondent
No. 2 examined himself and also examined couple of
other witnesses like Education Officer and the
photographer, conspicuously, in his testimony he has not
at all mentioned about he having approached the
petitioners, before the rangoli was trampled, requesting
to remove it. Though such an allegation was made in the
complaint he failed to substantiate it on oath during the
course of hearing before charge. Obviously, the Education
Officer is not a witness to the incident and the
photographer who has been examined to take
photographs of the rangoli and possible marks of
trampling.

13. Even going by the allegations as it is, it is not the
case of the respondent No. 2 about the petitioners themselves
having trampled over the rangoli. His only grievance appears
to be the petitioners being the Headmaster and the Office
bear, it was their responsibility to remove it on their own
or at least on request being made by the respondent No.
2 when he along with villagers had approached them. If
such is the state of affairs it would be sheer abuse of
29

process of law if the petitioners are made to face the
charge without there being iota of material in spite of
conducting hearing before charge about any intention on
their part to insult the National Flag.

14. It is in view of such state of affairs, it would be just
and proper to quash the proceeding before the Magistrate."

9.7. In the case of STATE v. D. SENTHILKUMAR7, the

High Court of Madras has held as follows:

".... .... ....

19. This Court will deal with the second issue that has
been taken up for consideration under the following heads:

1. The historical significance of the National Flag of India and
the Constituent Assembly Debates;
2. Constitution of India and the Act;
3. Provisions of the Flag Code of India, 2002; and
4. Essential Ingredients to attract an offence under Section 2
of the Act; and

4.1. Importance of Mens Rea in a case of this nature;
4.2. Interpretation of Insult; and
4.3. Interpretations rendered by various High Courts on
the purport of Section 2 of the Act.
5. Compulsive Patriotism and its Fetishization.

20. The Historical Significance of The National Flag
of India and The Constituent Assembly (Constituent
Assembly of India Debates (Proceedings)-Volume IV, Tuesday,
the 22nd July 1947, Resolution Re. National Flag)

7
2021 SCC ONLINE MAD 1184
30

21. In 1921, a student named Pingali
Venkayya presented a flag design as a distinctive symbol
representing its nationalist objectives and rallied the millions.
With changes over the next few decades, the present Flag in its
colours, design and proportion was adopted as the National Flag
of India.

22. Pandit Jawaharlal Nehru, when moving the
Resolution regarding the National Flag before the Constituent
Assembly of India on 22nd July 1947, said:

This Resolution, Sir, is in simple language, in a
slightly technical language, and there is no glow or
warmth in the words that I have read. Yet I am sure
that many in this House will feel that glow and warmth
which I feel at the present moment for behind this
Resolution and the Flag which I have the honour to
present to this House for adoption lies history, the
concentrated history of a short span in a nation's
existence. Nevertheless, sometimes in a brief period we
pass through the track of centuries. It is not so much
the mere act of living that counts but what one does in
this brief life that is ours; it is not so much the mere
existence of a nation that counts but what that nation
does during the various periods of its existence; and I
do venture to claim that in the past quarter of a century
or so India has lived and acted in a concentrated way
and the emotions which have filled the people of India
represent not merely a brief spell of years but
something infinitely more. They have gone down into
history and tradition and have added themselves on to
that vast history and tradition which is our heritage in
this country. So, when I move this Resolution, I think of
this concentrated history through which all of us have
passed during the last quarter of a century. Memories
crowd upon me. I remember the ups and downs of the
great struggle for freedom of this great nation. I
remember and many in this House will remember how
we looked up to this Flag not only with pride and
enthusiasm but with a tingling in our veins; also how;
when we were sometimes down and out, then again the
sight of this Flag gave us courage to go on. Then, many
who are not present here today, many of our comrades
who have passed, held on to this Flag, some amongst
them even unto death and handed it over as they sank,
31

to others to hold it aloft. So, in this simple form of
words, there is much more than will be clear on the
surface. There is the struggle of the people for freedom
with all its ups and downs and trials and disasters and
there is, finally today as I move this Resolution, a
certain triumph about it--a measure of triumph in the
conclusion of that struggle.".

... Therefore, this Flag that I have the honour to
present to you is not I hope and trust, a Flag of Empire,
a Flag of Imperialism, a Flag of domination over
anybody, but a Flag of freedom not only for ourselves,
but a symbol of--freedom to all people who may see it.
(Cheers). And wherever it may go-and I hope it will go
far,-not only where Indians dwell as our ambassadors
and ministers but across the far seas where it may be
carried by Indian ships, wherever it may go it will bring
a message, I hope, of freedom to those people, a
message of comradeship, a message that India wants to
be friends with every country of the world and India
wants to help any people who seek freedom. (Hear,
hear). That I hope will be the message of this Flag
everywhere."

23. Sir S. Radhakrishnan added, "the Flag links up the
past and the present. It is the legacy bequeathed to us by the
architects of our liberty."

24. Mr. Frank R. Anthony, in his speech, said that "This
Flag flies today as the Flag of the Nation, it should be the duty
and privilege of every Indian not only to cherish and live under it
but if necessary, to die for it."

25. Dr. Joseph Alban D'Souza prayed, "Vivat, Crescat,
Floreat India", "May India under the aegis of this Flag live, grow
and flourish".

26. Mr. Chaudri Khaliquzzaman said, "I know that a flag
to look at, is simply a piece of cloth but a country's flag
symbolises its ideals and its aspirations, both moral and
spiritual."

27. Pandit Govind Malaviya observed:
32

"As I have already stated, when a flag or any
other thing is accepted by a nation as its ensign, it
becomes the dearest object of the nation and assumes
the most important and the highest place in the life and
history of that nation. This, our Flag, has been the
symbol of the hopes and dreams of our hundred million
souls for the last 27 years. For the honour of this flag
millions holding it dearer than their lives, suffered
tremendously. Numberless people went to jails leaving
their children starving. People had their heads and
bones broken by the lathis of police and the military to
keep it aloft. Unarmed young men and students of the
country opened their chests before the bullets of the
English military or police to protect the honour of his
Flag. For generations it has been our Flag and the great
feeling, emotion and enthusiasm we have in our hearts
for this Flag is beyond human description."

28. A symbol is a mark, sign, or word that indicates,
signifies, or is understood as representing an idea, object, or
relationship. A Country's National Flag is a symbolic
manifestation intended as an inclusive, representative and
integrated comity. The National Flag, therefore, conjures a rush
of pride in the whole being of its citizens.

29. Rejecting what is symbolic of a Nation brings to mind
the words of the character Philip Nolan in Edward Everett Hale's
short story The Man without a Country', "Remember, boy, that
behind all these men... behind officers and government, and
people even, there is the Country Herself, your Country, and
that you belong to her as you belong to your own mother. Stand
by her, boy, as you would stand by your mother...!".

Constitution of India and the Act

30. Article 19(1)(a) of the Constitution (hereinafter
referred to as "the Constitution") guarantees all citizens, 'right
to freedom of speech and expression.' However, the right is not
absolute and is subject to reasonable restrictions, and the law
on the same is settled. Article 51-A (1) simultaneously lays
down that citizens are duty-bound 'to abide by the Constitution
and respect its ideals and institutions, the National Flag and the
National Anthem.'
33

31. The earliest legislation on the subject of 'insults to
national honour' in India was enacted by the State of Tamil
Nadu in the year 1957. The Prevention of Insults to National
Honour Act, 1957 (Tamil Nadu Act No. XIV of 1957) was enacted
in the wake of the Anti-Hindi Agitation Movement in order to
'prevent certain offences against the Indian National Flag,
pictures, effigies and statutes of the Father of the Nation, or the
Constitution of India.'

32. Section 4 of The Prevention of Insults to National
Honour Act, 1957 made the 'burning etc., of Indian National
Flag' as an offence punishable with imprisonment for a term
which may extend to 3 years or with fine or both. The
explanation to the provision clarified that the term 'Indian
National Flag' includes 'any pictorial representation thereof.

33. This Act is, therefore, the precursor to The Prevention
of Insults to National Honour Act, 1971 (Act No. 60 of 1971),
legislated by the Parliament. The Introduction to the Act
highlights that the need for a law on this subject was imperative
in the wake of 'incidents involving deliberate disrespect to the
National Flag, the National Anthem and the Constitution and the
need to 'prevent the recurrence of such incidents.''

34. The Statement of Objects and Reasons of the Act is
extracted hereunder so as to set clarity to the malice that the
law set out to handle and eliminate:

"Cases involving deliberate disrespect to National
Flag, the National Anthem and the Constitution have
come to the notice in the recent past. Some of these
incidents were discussed in both the Houses of
Parliament and members expressed great anxiety about
the disrespect shown to the national symbols.
Government were urged to prevent the recurrence of
such incidents. Disrespect to the National Flag and the
Constitution or the National Anthem is not punishable
under the existing law. Public acts of insults to these
symbols of sovereignty and the integrity of the nation
must be prevented. Hence the Bill. The scope of the law
is restricted to overt acts of insult to and attack on, the
national symbols by burning trampling, defiling or
mutilating in public. It is not intended to prohibit honest
34

and bonafide criticism of the symbols, and express
provisions to this effect have been made in the Bill."

35. Under the scheme of the Act, Section 2
penalizes any act which insults the Indian National Flag
and the Constitution of India with imprisonment, which
may extend to 3 years or with fine, or with both.
Explanation 1 exempts any comments or criticism that are
made with a view to obtaining an amendment of the
Constitution or alteration of the Flag. Explanation 2 to
Section 2 elucidates as to what constitutes "Indian
National Flag". Explanation 3 expresses what "public
place" occurring in Section 2 is. Explanation 4 analyses
what disrespect to the Indian National Flag means and
includes.

36. The provision is extracted hereunder:

2. Insults 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.
35

[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,-
(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 or any dress
material; 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 statute
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.]

37. Subsequently, the Flag Code of India, 2002
(hereinafter referred to as "the Code") was brought into force as
an attempt to bring together the provisions of the Emblems and
36

Names (Prevention of Improper Use) Act, 1950 and the Act, and
'all such laws, conventions practices and instructions' issued by
the Government from time to time with respect to the display of
the National Flag and the manner thereof.

38. Clause 2.1. of Section I of the Code provides that
"There shall be no restriction on the display of the National Flag
by members of the general public, private organisations,
educational institutions etc., except to the extent provided in
the Emblems and Names (Prevention of Improper Use) Act,
1950 and the Prevention of Insults to National Honour Act, 1971
and any other law enacted on the subject."

39. The Code, however, does not have the force of a statute
and is not 'law' under Article 13(3)(1) of the Constitution as held
by the Hon'ble Supreme Court in Union of India v. Naveen
Jindal, reported in (2004) 2 SCC 510. It contains a set of
procedures and parameters to be followed while using the Flag.

40. A comprehensive reading of the provisions extracted
herein above would show that the Act seeks to lay a reasonable
restriction over the fundamental right to expression guaranteed
by the Constitution under Article 19 by laying down the
parameters that would circumscribe certain overt acts to be
beyond such threshold, moving into the realm of causing
deliberate insult to the National Flag, the Constitution and
emblems thereof. It further provides for the proprieties to be
observed while displaying the national Flag.

Provisions of the Flag Code of India, 2002

41. Unlike the 1971 Act, the Flag Code of India is not placed
on the footing of a statute. Rather, the Flag Code is a set of
Executive instructions as to proper use of the National Flag.
In Naveen Jindal (cited supra), the Supreme Court took into
account three important dimensions in order to find out an
answer to the question of whether the Flag Code is a Law under
Art. 13(3)(a) namely:

1. Importance of National Flag,
2. Constituent Assembly Debates and
37

3. Rules existing in other countries.

42. The relevant portions of the judgment are extracted
hereunder:

The question, however, is as to whether the said executive
instruction is "law" within the meaning of Article 13 of the
Constitution of India. Article 13(3)(a) of the Constitution of
India reads thus:

"13.(3)(a) "Law" includes any Ordinance, order bye-law,
rule, regulation, notification, custom or usage having in the
territory of India the force of law."
A bare perusal of the said provision would clearly go to
show that executive instructions would not fall within the
aforementioned category. Such executive instructions may
have the force of law for some other purposes; as for example
those instructions which are issued as a supplement to the
legislative power in terms of clause (1) of Article 77 of the
Constitution of India. The necessity as regard determination of
the said question has arisen as the Parliament has not chosen
to enact a statute which would confer at least a statutory right
upon a citizen of India to fly a National Flag. An executive
instruction issued by the appellant herein can any time be
replaced by another set of executive instructions and thus
deprive Indian citizens from flying National Flag Furthermore,
such a question will also arise in the event if it be held that
right to fly the National Flag is a fundamental or a natural right
within the meaning of Article 19 of the Constitution of India;
as for the purpose of regulating the exercise of right of
freedom guaranteed under Article 19(1)(a) to (e) and (g) a
law must be made.

43. The court further held that,
(iv) Flag Code although is not a law within the meaning of
Article 13(3)(a) of the Constitution of India for the purpose of
clause (2) of Article 19 thereof it would not restrictively
regulate the free exercise of the right of flying the national
Flag.

Essential Ingredients to attract an offence under
Section 2 of the Act.
38

44. For any act to be termed as an offence under
Section 2, Actus Reus and Mens Rea should be
established. The Actus Reus being any of the actions in
Section 2 and Explanation 4 and the Mens Rea being the
intention to show disrespect or contempt. As to what
constitutes an offence, the decisions of the Hon'ble
Supreme Court and various High Courts are extracted
hereunder.

45. The High Court of Bombay in Amgonda Vithoba
Bandhare v. Union of India, reported in (2012) 4 Mah LJ
768 held that:

"7. Explanation 4 mentions various acts of dishonour
in clauses (a) to (l). Perusal of the said section clearly
reveals that one of the essential ingredients of the said
offence is that disrespect, contempt of the Flag should
be intentional Similarly, Explanation 4 gives various
instances of disrespect to the Indian National Flag The
offence of not lowering down the Flag after sunset does
not fall either in the various instances which are
mentioned in Explanation 4 or in Section 2 of the said
Act. The averments in the complaint, therefore, even if
they are accepted at its face value, does not constitute
an offence within the meaning of Section 2 of the said
Act.

8. So far as the Flag Code is concerned, the said Flag
Code is not an Act nor is it issued under any of the
statutory provisions of the said Act and, therefore, it is
not a statutory law enacted by the competent
legislature.

9. The Apex Court had occasion to consider whether
the Flag Code has any statutory course and in the case
of Union of India v. Navin Jindal, decided on 23.1.2004
in Civil Appeal No. 453 of 2004, after going through
various sections and parts of the Flag Code, the Apex
Court came to the conclusion that the Flag Code
contains executive instructions of the Central
Government and, therefore, it is not a law within the
meaning of Article 13(3)(a) of the Constitution of India.
In view of the ratio of the judgment of the Apex Court,
therefore, it cannot be said that violation of the
39

instructions which are given in the Flag Code would
amount to an offence which is punishable under Section
2 of the said Act."

46. Relying on Amgonda (cited supra), the Bombay High
Court held the following in the case of Dr. Varsha w/o Raj
Salunke v. State of Maharashtra, reported in 2018 SCC OnLine
Bom 2805 : (2019) 1 AIR Bom R (Cri) (NOC 12) 5.

"9. ....... In "Amgonda" (Supra). It has been observed,

'7. Explanation 4 mentions various acts of
dishonour in clauses (a) to (l). Perusal of the
said section clearly reveals that one of the
essential ingredients of the said offence is that
disrespect, contempt of the Flag should be
intentional. Similarly, Explanation 4 gives
various instances of disrespect to the Indian
National Flag. The offence of not lowering down
the Flag after sunset does not fall either in the
various instances which are mentioned in
Explanation 4 or in Section 2 of the said Act. The
averments in the complaint, therefore, even if
they are accepted at its face value, does not
constitute an offence within the meaning of
Section 2 of the said Act.'

8. So far as the Flag Code is concerned, the
said Flag Code is not an Act nor is it issued
under any of the statutory provisions of the said
Act and, therefore, it is not a statutory law
enacted by the competent legislature.

Therefore, when the facts of the case do not
disclose commission of any offence and only
non-observance of the Flag Code then such non-
observance which is not a law within the
meaning of Article 13(3)(a) of the Constitution
of India, it cannot be said to be covered under
Section 2 of the Prevention of Insults to
National Honour Act 1971."

Importance of Mens Rea in a case of this nature

47. From a perusal of the penalising provision and
even the Statement of Objects and Reasons to the Act,
what is deduced is that Mens Rea, i.e., to cause insult,
40

show disrespect or to bring into contempt towards the
National Flag or The Constitution is seen at a high
threshold. The intention to commit such an act must be so
malafide and apparent to attract an offence under Section
2 of the Act.

48. At this juncture, it is pertinent to take into account
the judgement of the High Court of Madhya Pradesh in Ganesh
Lal Bathru v. State of MP, reported in 2002 SCC OnLine MP 599,
where the Court interpreted "otherwise beings into contempt"
as:

"6. From a perusal of the relevant provisions
of the Act so also the Code and on a careful
scrutiny of materials on record, it is clear that
there is a dearth of materials to show an intention
or mens rea to disrespect the national Flag and
thereby to undermine the sovereignty of nation.
The applicant was working as the Principal of a
Government High School and being the incharge
could hoist the Flag but since the complainant was
authorised to do so, the applicant could not have
played any mischief unless there is a positive
material to the contrary, in tying the Flag in
reverse Order through a lower staff to show down
the complainant....

...In addition to that, the inclusive clause of
section 2 'or otherwise brings into contempt'
cannot be stretched that far as to include acts in
question which are absolutely devoid of elements
of mens rea or disrespect and thus fall outside the
definition of contempt as given in Black 's
Dictionary."

49. In the case of Tamizhazhagan v. The Revenue
Divisional Officer reported in (1966) 2 Mad LJ 194, this Court
while dealing with the validity of Prevention of Insults to
National Honour Act, 1957 and Section 5 of the said Act,
summarised the meaning of patriotism, and the intention
of the legislature behind the impugned statute, held as
follows:
41

"18. Patriotism and loyalty to the Constitution are
matters of feeling and conduct with the human spirit. They are
capable of drawing out of man the highest of his noble qualities
and supreme sacrifice. They belong to the category of feelings
which, at any rate at the present stage of society and world
order, man regards as of paramount importance. From such
belief flows sentiments of great regard and veneration to
objects which symbolise such feelings. The Constitution of India
which the people of India have given themselves, symbolises
the realisation of their cherished dreams after decades of
unparalleled sacrifice, and it is but natural to expect any citizen
of India to regard with veneration any document that embodies
the Constitution. True, the Constitution can be amended and
has been amended several times, but the Constitution is an
organic instrument and carries within it the power to get itself
amended. To the instrument as it stands he pays his deepest
homage. It symbolises to him his hard-won sovereignty; it
contains his charter of rights.
19. It is quite a common feature to be observed that
people in this country, at least large sections, look with
veneration upon any parchment, paper, palm leaf, or slate,
which records any writing as manifestations of Goddess
Saraswathi. If, in such circumstances, the State should think it
necessary to declare the wilful burning of any article embodying
the Constitution or part of it, an offence, the State is only
discharging its duty, and reflecting the sentiments of large
sections of the Indian public, it is only making punishable an
act which may otherwise go unpunished, though it might have
offended the sentiments of large sections of the community,
and deeply wounded their feelings. It will be a case of mala in
se, that is, an offence against nature or contrary to the moral
sense of the community, and not a mere mala prohibitat that
is, an offence against laws which enjoin positive duties and
forbid things which are not mala in se, to which is annexed a
penalty for non-compliance.
20. Here we would like to quote the observations of the
Supreme Court in Veerabadran Chettiar v. Ramaswami
Naicker. The decision impliedly recognise the duty of the State
to protect the sentiments and susceptibilities of its different
groups of citizens. That was a case of religious susceptibilities.
The question in that case was whether the breaking in public of
an unconsecrated clay idol of God Ganesa held sacred by a
large section of Hindus with the express intention of insulting
the feelings, of the Hindu community would be an offence
under Section 295, Penal Code, 1860. The Penal Code, 1860
had used the words "any object held sacred by any class of
persons." Differing from this Court and holding that idols are
42

only illustrative of those words and the objects destroyed need
not be consecrated ones, Sinha, J., delivering the judgment of
the Supreme Court, remarks at page 1035:
A sacred book like the Bible, or the Koran, or the Granth
Saheb, is clearly within the ambit of these general words. If the Courts
below were right in their interpretation of the crucial words in Section
295, the burning or otherwise destroying or defiling such sacred books
will not come within the purview of the penal statute. In our opinion,
placing such a restricted interpretation on the words, of such general
import, is against all established canons of construction. Any object,
however trivial or destitute of real value in itself if regarded as sacred
by any class of persons, would come within the meaning of the penal
section. Nor is it absolutely necessary that the object, in order to be
held sacred, should have been actually worshipped. An object may be
held sacred by a class of persons without being worshipped by them.
It is clear, therefore, that the Courts below were rather cynical in so
lightly brushing aside the religious susceptibilities of that class of
persons to which the complainant claims to belong. The section has
been intended to respect the religious susceptibilities of persons of
different religious persuasions or creeds. Courts have got to be very
circumspect in such matters, and to pay due-regard to the feelings and
religious emotions of different classes of persons with different beliefs,
irrespective of the consideration whether or not they share these
beliefs or whether they are rational or otherwise, in the opinion of the
Court.
35. Now, the impugned legislation penalises only
wilfully burning of any copy or a copy of a part of the
Constitution of India, and the word 'wilfully' is of
considerable import in the context of its user. It is not
every burning of a copy of the Constitution that is made
an offence. Wilfully' there, is not just the equivalent of
knowingly or intentionally. It is something more. It is
burning the Constitution purposely, the purpose getting
apparent from the two succeeding words 'desecrates' or
'insults' and as revealed by the Short Title to the Act and
the Preamble. Wilfully', as we see it, denotes an evil
intention and it is found in Stroud's Judicial Dictionary,
3rd Edition, Volume 4, at page 3305, that such is the
common use of the word in the English language.
Wilfully' in the context does not mean merely
intentionally as opposed to accidentally which meaning it
sometimes has.
In The Queen v. Senior, wilfully' is stated to mean
that "the act is done deliberately and intentionally, not
by accident or inadvertence, but so that the mind of the
person who does the act goes with it". The paper
embodying the Constitution must be burned as
embodying the Constitution; there must be deliberation
to burn a copy or part of the Constitution with the
43

intention of desecrating or insulting No doubt if the
words' wilfully burns' stand by themselves, it may take
in an innocent burning of the paper containing the
Constitution. But the words take their colour from the
context. The enactment is not made in vacuo. The
circumstances in which the Act came to be passed, the
object and purpose of the Act as revealed in the
Preamble and the other parts of the Act provide the key
to the understanding of the language and place a
limitation on the words' wilfully burns'."

Interpretation of the term 'Insult'

50. In Tamizhazhagan (cited supra), this Court
while interpreting the terms' insult' and desecration',
after delving into the principles of interpretation in
construing general language used by the legislature in an
enactment, held as extracted hereunder:

"36. In Craies on Statute Law, 6th Edition, at page 177, the
principles of interpretation in such circumstances as gathered
from the case-law are set out thus : From Cox v. Hakes (2), the
following statement is extracted:

"It cannot, I think, be denied that, for the purpose of
construing any enactment, it is right to look, not only at the
provision immediately under construction, but at any others
found in connection with it which may throw light upon it, and
afford an indication that general words employed in it were not
intended to be applied without some limitation. General words
therefore must be understood as used with reference to the
subject-matter in the mind of the Legislature and limited to it."

We are on a penal statute and when interpretation of
the statute becomes necessary, it should lean towards
preserving the liberty of the subject. That the word
'burns' in S. 5 of the Act can only refer to burning with an
intention of desecrating or insulting in the context of its
user, will be apparent from the following illustration
given in Maxwell on Interpretation of Statutes,
11th Edition, at page 324:

"On the same principle, an Act which prohibited the
'taking or destroying' of the a pawn or fish would not
44

include a 'taking' of spawn to remove it to another bed,
for the word 'destroying' with which 'taking' was
associated, indicated that the taking which was
prohibited was dishonest or mischievous."

It is an established principle of interpretation of
statute that if very general language is used in an
enactment, which it is clear must have been intended to
have some limitation put upon it, the Preamble may be
used to indicate to what particular instances the
enactment is intended to apply-see Craies on Statute
Law, 6th Edition, at page 203. If need be, we would read
the conjunction 'or' before 'insults' in S. 5 as 'and', that
the section may read:"Whoever wilfully burns or
desecrates and insults". Vide Maxwell on Interpretation
of Statutes, 11th Edition, at page 230 for an illustration
where an absurd consequence was avoided and the real
intention of the Legislature which was beyond reasonable
doubt was effected by reading 'or' as 'and'."

51. The court went on to note the meaning of the terms'
insult' and 'desecrate',

"37. In Frank and Wagnalls' New Standard Dictionary' insult'
is explained thus:"To treat with gross indignity, insolence or
contempt, by word or act; officer an indignity or affront to;"
'Desecrate' is defined in the Dictionary as "divert from sacred to
a common use; give up to sacrilege; profane, as to desecrate a
shrine or holy vessels".

52. Further, it held,

"38. Learned Counsel contends that even if a person burns a
copy of the Constitution in the fastness of his own house, he
could be held guilty under the section, and the wide sweep of
the enactment beyond the needs makes the Act
unconstitutional. We do not construe the Act like that. The gist
of the offence is insult and if insult is to be effective, it has to be
conveyed. The law does not take note of uncommunicated or
unexhibited ideas or thoughts or feelings. In the Law Lexicon of
India, Ramanatha Iyer Edition, page 603,

Insult' is explained as being 'active' like outrage. The
language is 'whoever insults', not 'whoever thinks he
insults' : insult cannot be taken by a copy of the
45

constitution : it will hurt the millions who pay homage to
the Constitution. The burning that is banned is not one
intended for absorption of stone walls or for edification
of stoic philosopher-spectators. It is a burning that one
may expect would provoke and offend those hostile to
the idea, while exciting the friendly and sympathetic to
extremes of demonstration, with likelihood of violent
clashes between the two.

59. On ultimate analysis the position resolves to this :
whenever the question arises whether a particular
offence involves moral delinquency, the particular case
will have to be decided on its own facts, and the
conclusion will have to be in accordance with the public
morals of the time and the common sense of the
community as ultimately judicially interpreted. Here
again, the context and the purpose for which the
character of the offence has to be determined will have a
bearing on the matter. The question has to be
approached not in an abstract fashion, but bearing in
mind the implications of the particular offence, and the
requirements and object of the statute for which the
moral element has to be assessed.

Interpretations rendered by various High Courts on
the purport of Section 2 of the Act

53. In the case of Sarvadnya D. Patil v. State of Goa,
reported in 2001 SCC OnLine Bom 753, the Bombay High
Court held that there should be an intentional overt act in
order to attract an offence under Section 2 of the Act. The
relevant portions of the judgement are extracted hereunder:

"5. It is doubtful whether omission to hoist the
National Flag or hold the Flag Hoisting ceremony on the
aforesaid days of national importance would fall within
the ambit of "or otherwise brings into contempt". The
definition clearly indicates positive acts such as burning
mutilating defacing defiling etc. In order to be liable for
punishment under Section 2, it is necessary that the act
complained of must be intentional. The omission to hold
the flag hoisting ceremony cannot be said to be sui
generis with the positive acts mentioned preceding the
words "or otherwise". Even otherwise, there is no
statutory provision making it mandatory to hold the flag
46

hoisting ceremony on 19th December, 2000 i.e. Goa
Liberation Day and other days of national importance."

54. In The Publisher, Sportstar Magazine,
Chennai v. Girish Sharma, reported in 2000 SCC OnLine Mad
896, this Court, while dealing with a case as to whether an
opinion published in a magazine highlighting the importance of
the national Flag in light of the Flag being displayed upside down
at a sports tournament, held as follows:

"10. The reading of the above provision would
make it clear that whoever in any public place brings
into contempt the Indian National Flag shall be
punished.
.......
12. The perusal of the above paragraphs would
make it clear that the Indian Flag was placed upside
down in the Tournament took place on 8.3.1997, in
which Chess was played by V. Anand and Veselin
Topalov and the said figure was published by the
Publisher, the petitioner herein.
13. In paragraph 4 of the complaint, the
complainant would state that the said figure of the
Indian Flag which was placed upside down was
published by the petitioner in his Magazine, thereby
the Publisher caused dishonour and insult to the
Indian Flag and Nation.
14. In short, it is the case of the complainant
that the publication of the photograph displaying the
event which took place in a foreign country where the
Indian Flag was placed upside down while the Indian
player and the foreign were playing, would amount to
offence under the Act. Thus, it is clear that it is not the
case of the complainant that the Indian Flag was
placed by the Publisher in a wrong way or upside
down.
15. On going through the article, which is the
material on the basis of which complaint has been
filed, it is clear that initially the Indian Flag was kept
upside down, but the same was corrected by the
Organisers within a few minutes. This is only an
information disseminated through the press.
16. For placing Indian Flag upside down, it
cannot be stated that the Publisher was in any way
responsible. On the other hand, the mistake
47

committed by the Organisers of the Tournament was
clearly displayed and depicted through the photograph
informing the reading public that the mistake
committed by the Organisers in placing the Indian Flag
in a wrong way at the beginning stage has been
corrected by them even in the middle of the play.
17. Moreover, the writer of the article also
would express his opinion that, "When Indian Flag
was placed upside down, the Indian player Anand did
not play well, but once this was corrected, the Indian
player started to play well and won two games". This
opinion given by the writer of the article would
indicate that the players can play well only when the
National Flag is placed in the correct way. Therefore,
the publication of the photograph and writing the
article about it giving the above opinion would not
amount to insult to the National Flag. On the other
hand, it is the warning to the Organisers not to place
the Indian Flag upside down.
18. It would also indicate that when the Indian
players play in foreign countries, they have to verify
whether the Indian Flag placed in the Chess Table is in
a correct way and thereafter, they have to play and
only then, play would be a fair play and they would
also play well.
19. The photograph and the opinion given in the
article by the writer, in my view, is to impress upon
the players as well as the Organisers of the
Tournament that at least in the future, the Flags of the
respective countries must be placed in a correct way
and proper placement of the National Flag only would
pave the way for the proper play. Therefore, this is
only a comment by the press which indicates the
importance of the honour to be given to the National
Flag.
20. Under those circumstances, this publication
of the photograph and the events which took place in
the foreign country while the chess was played along
with the opinion of the writer of the article, would not
attract any ingredients of Section 2 of the Act."

55. In the case of Ajitinder Singh v. State of Punjab,
reported in 2000 SCC OnLine P&H 52, the court held the
following.
48

"7. Flying the National Flag on the Government
vehicles does not come within any of the categories
mentioned in the aforesaid Section nor does it amount to
insult to Indian National Flag. The learned Counsel for
the petitioner is not able to draw my attention to any of
the provisions of law or authority to show that flying the
National Flag on the car used by Respondent No. 5
amounts to insult to the National Flag. A reading of
Section 2 of the Prevention of Insults to National Honour
Act, 1971 does not prohibit flying of the National Flag on
the bonnet of the car. Therefore, this contention of the
learned Counsel for the petitioner is also rejected."

56. In P.V. Joseph v. State of Kerala, reported in 2016
SCC OnLine Ker 11466, the Kerala High Court held that a
prosecution would be unnecessary in a case where there
was no intention on the mind of the accused person to
dishonour the National Flag. The relevant portion of the
judgement is extracted hereunder:

"4. Going by the decisions noted supra, it
seems that the prosecution in this case is quite
unnecessary. Apart from that, it seems that there
was no intention on the part of the petitioners to
dishonour the National Flag. True that it was an
omission on their part in lowering the National
Flag after the prescribed time. The prosecution
seems to be quite unnecessary and therefore, the
same can be quashed."

57. In A.K. Viswanathan v. Angamali Municipality
Represented by its Secretary, reported in 2019 SCC OnLine Ker
3978, the Kerala High Court held:

"13. In other words, it is indirectly admitted
in the complaint that the petitioners had no
intention to insult or to show disrespect to the
National Flag.

14. ....even assuming that the averment in
Annexure-A1 complaint that the National Flag
lowered down by the second accused was one
hoisted on the morning of 17.08.2015 on the flag
post, it cannot be found that he had any intention
49

to insult or to show disrespect to the National Flag
by lowering it down. Even as per the averment in
the complaint, the petitioners had done so on a
misunderstanding that the National Flag which
was hoisted on the flag post on the Independence
Day was thereafter not lowered down."

58. In Addanki Ranjith Ophir v. State of Andhra Pradesh,
reported in 2017 SCC OnLine Hyd 499, the Andhra Pradesh High
Court held:
"6. Printing of the photo of the Jesus Christ on
the said book does not in any manner fall within the
purview of Section 2 of the said Act."

61. Patriotism is not determined by a gross physical act. The
intention behind the act will be the true test, and it is possible
that sometimes the very act itself manifests the intention behind
it. In the present case, even if the entire set of facts stated in
the complaint are taken as it is, it must be seen as to what
would have been the actual feeling with which the participants
would have dispersed after the function was over. Will they be
feeling great pride in belonging to this great nation, or would the
pride of India have come down on the mere cutting of a cake
during the celebration? Without any hesitation, this Court can
hold that the participants would have felt only the former and
not the latter. For proper understanding, let us take a
hypothetical case where there is widespread participation in an
Independence Day or Republic Day celebration. During such
celebrations, the participants are provided with a national flag to
be worn by them. In reality, after the participants leave the
venue on completion of the celebrations, they do not continue to
possess this Flag forever, and it becomes part of any other
waste paper. Will this mean that each of the participants
has insulted the national Flag and should be proceeded
against under Section 2 of the Act? The obvious answer is
in the negative. If persons are allowed to give such broad
meaning to the word 'insult', many will become very
uncomfortable and hesitant to handle the national Flag.
The National Flag is given during the function as a symbol
of our national pride. Once such a feeling is created in the
minds of the participants, the purpose for which the
national Flag was given or used will be achieved.
50

62. The Flag Code does provide a mechanism to
destroy flags in private, in a manner consistent with the
dignity of the Flag, and as a responsible citizen, it should
be followed in letter and spirit. Not all will be aware of
this procedure, and therefore, that by itself will not make
them susceptible to committing an offence under Section
2 of the Act. This Court ventured to give such an extreme
illustration only to drive home the point that a wayfarer,
for the mere sake of publicity, should not be allowed to
expose people to criminal prosecution for some innocuous
acts which by themselves cannot be construed to be an
insult to make it an offence under Section 2 of the Act.

63. In view of the above discussion, this Court is of the
considered view that the complaint given by the Respondent
does not make out an offence under Section 2 of the Act, and
the second issue is answered accordingly."

9.8. In the case of GAURISHANKAR GARG v. STATE OF

M.P8., the High Court of Madhya Pradesh has held as follows:

".... .... ....

5. Learned counsel for the petitioners submits that even if
the allegations contained in the FIR are treated to be true, then
too they do not consitute any offence as alleged. In support of
his contentions, learned counsel has placed reliance on decisions
of the Apex Court in the cases of State of
Haryana v. Bhajanlal, 1992 Supp (1) SCC 335, Union of
India v. Naveen Jindal, (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, 2012 Cri LJ
3142 and the Single Bench decision of this Court rendered at

8
2021 SCC ONLINE MP 1763
51

Indore Bench in M.Cr.C. No. 5230/2012 (Dr. Vikram
Dutta v. State of M.P.) decided on 25.01.2018.

6. The relevant provisions of Sec.2 of 1971 Act read
thus:--

"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.

7. 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 at about 8.30 PM
i.e. between sunset and sunrise. This act of petitioners
does not squarely fall within Sec.2 of 1971 Act. Thus, the
act of leaving the National Flag in hoisted position even
after sunset may be an act of advertent or inadvertent
forgetfulness and subject matter of misconduct but not
contemptuous unless it is shown that hoisting and flying
the National Flag between sunset and sunrise is expressly
prescribed as an offence in specific terms.
52

8. The fundamental rule of interpretation of penal
provision requires that every penal provision is to be interpreted
strictly. If an act does not fall within the four corners of the
offence described by the statute, then the said act cannot suffer
rigors of penal provision.

10. In this regard, the decision of The Apex Court in R.
Kalyani v. Janak C. Mehta, (2009) 1 SCC 516, is noteworthy:--
11.
"37. Maxwell in The Interpretation of Statutes (12th Edn)
says:"The strict construction of penal statutes seems to
manifest itself in four ways : in the requirement of express
language for the creation of an offence; in interpreting
strictly words setting out the elements of an offence; in
requiring the fulfillment to the letter of statutory conditions
precedent to the infliction of punishment; and in insisting on
the strict observance of technical provisions concerning
criminal procedure and jurisdiction."

38. In Craies and Statute Law (7th Edn. At p. 529) it is
said that penal statutes must be construed strictly. At page
530 of the said treatise, referring to U.S. v. Wiltberger, [2
Wheat. 76 (US)], it is observed, thus:

"The distinction between a strict construction and a
more free one has, no doubt, in modern times almost
disappeared, and the question now is, what is the true
construction of the statute? I should say that in a criminal
statute you must be quite sure that the offence charged is
within the letter of the law. This rule is said to be founded
on the tenderness of the law for the rights of individuals,
and on the plain principle that the power of punishment is
vested in the Legislature, and not in the judicial department,
for it is the Legislature, not the Court, which is to define a
crime and ordain its punishment."

39. In Tuck & Sons v. Priester, [[L.R.] 19 Q.B. 629] which
is followed in London and County Commercial Properties
Investments v. Attn Gen., [[1953] 1 WLR 312], it is stated:

"We must be very careful in construing that section,
because it imposes a penalty. If there is a reasonable
interpretation, which will avoid the penalty in any particular
case, we must adopt that construction. Unless penalties are
imposed in clear terms they are not enforceable. Also where
53

various interpretations of a section are admissible it is a
strong reason against adopting a particular interpretation if
it shall appear that the result would be unreasonable or
oppressive."

10. From the above, it is evident that the act of
leaving the National Flag at hoisted position between
sunset and sunrise does not satisfy the ingredients which
constitute the offence punishable u/S.2 of 1971 Act.

11. Learned counsel for respondents has attempted to
seek assistance from the Indian Flag Code, 2002 (for brevity,
"Flag Code"), in particular, Clause of Sec.2(2.2)(xi) of Flag
Code. He submits that in particular Clause under the said Flag
Code allowing National Flag to remain hoisted between sunset
and sunrise is prohibited. As such it is urged that if provision of
Sec.2 of 1971 Act is read in conjunction with the said clause of
Flag Code, then petitioners have prima facie committed the
offence punishable u/S.2 of 1971 Act.

12. The relevant clause of the Indian Flag Code, 2002 is
reproduced below for ready reference and convenience:--

"2(2.2)(xi)- Where the Flag is displayed in open, it
should, as far as possible, be flown from sunrise to sunset,
irrespective of weather conditions."

13. It is not in dispute that the said Flag Code is not "law"
as defined in Article 13 of Constitution of India and is a mere
compendium of executive instructions as held by the Apex Court
in Union of India v. Naveen Jindal, (2004) 2 SCC 510, the
relevant extract of which reads thus:--

whether the said executive instruction is "law" within the
meaning of Article 13 of the Constitution of India. Article
13(3)(a) of the Constitution of India reads thus:

"13. (3)(a) "Law" includes any Ordinance, order bye-
law, rule, regulation, notification, custom or usage
having in the territory of India the force of law."

29. A bare perusal of the said provision would clearly go
to show that executive instructions would not fall within the
aforementioned category. Such executive instructions may
have the force of law for some other purposes; as for
example those instructions which are issued as a supplement
to the legislative power in terms of clause (1) of Article 77 of
the Constitution of India. The necessity as regard
determination of the said question has arisen as the
Parliament has not chosen to enact a statute which would
confer at least a statutory right upon a citizen of India to fly
a National Flag. An executive instruction issued by the
appellant herein can any time be replaced by another set of
executive instructions and thus deprive Indian citizens from
flying National Flag. Furthermore, such a question will also
arise in the event if it be held that right to fly the National
Flag is a fundamental or a natural right within the meaning of
Article 19 of the Constitution of India; as for the purpose of
regulating the exercise of right of freedom guaranteed under
Article 19(1)(a) to (e) and (g) a law must be made."

14. As such since the Flag Code does not have any
statutory force it cannot attract any offence. Besides, the
Flag Code lays down that as far as possible National Flag
should be flown between sunrise and sunset. Meaning
thereby that it should not be flown between sunset and
sunrise. Use of expression "as far as possible" in the said
clause of Flag Code, which is a mere instruction, is
sufficient for this Court to conclude that flying of National
Flag between sunset and sunrise is not prohibited by
law."

(Emphasis supplied in each instance)
55

In the light of the judgments rendered by different High Courts on

the issue, the High Court of Madras being the most comprehensive

consideration, it becomes necessary to notice whether mens rea

existed for insult of the flag, as the provision itself indicates that

allowing the National Flag to touch the ground or the floor or trail in

water, intentionally. Therefore, mens rea becomes the key

ingredient of an offence under Section 2 of the Act. Whether mens

rea is present in the case at hand is necessary to be noticed.

10. On 02-10-2024 when the picture cropped up, the student

admitted the guilt and gave an explanation that he has placed the

picture of the Principal upon the National Flag unknowingly. The

communication of the leader of the students to the Principal reads

as follows:

" ೆ,
ಮುಖ a[ಕ ೆ
ಸ ಾ" #ೌ%ಢ'ಾ(ೆ ಾಗಲ ೋ ೆ
ೆಂಗಳ ರು ಉತ3ರ ವಲಯ - 4
ೆಂಗಳ ರು ಉತ3ರ U(ೆ:

ಇಂದ,
ಯಶವಂತ ೌಡ
10 ತರಗ0
56

ಸ ಾ" #ೌ%ಢ'ಾ(ೆ ಾಗಲಗುಂ ೆ,

ಾನ ೇ,

ಷಯ: [ ಾಪ ೆಯನುo ೋರು03ರುವ ಬ ೆ„

CೕಲHಂಡ ಷಯ ೆH ಸಂಬಂ PದಂNೆ ತಮ? : [ ಾಪ ೆ ೋರು03ರುವtjೇSೆಂದ ೆ wSಾಂಕ
2/10/2024 ರಂದು ಾಂ ಜಯಂ0 ಎಂದು 'ಾ(ೆಯ : ಆಚರ ೆ ಾಡಲು Nಾವt ನಮ?ಗr ೆ
\ೇr ೊg8ರುವ jೇಶಭ†3ಯನುo ನಮ? Uೕವನದ : #ಾ ಸುವ ಸಲು+ಾL ಾ‡@ೕಯ ಹಬˆಗಳನುo ನಮ?
ಹುಟು8 ಹಬˆಗrLಂತ \ೆಚು‰ ಮುತುವU" ವ}P ಆಚರ ೆ ಾಡ ೇಕು ಏ ೆಂದ ೆ ಅದರ }ಂjೆ 7ಾಕಷು8
ಬ ೆಯ ಬ jಾನ ಇjೆ ಎಂಬುದನುo ಅ ತು ೊಂಡು ಆಚರ ೆ ಾಡಲು Sಾ+ೆಲ:ರೂ ೆಳ ೆ 6:30 ಗಂ ೆ ೆ
ಸ cಾL 'ಾ(ೆ ೆ ಬಂwರುNೆ3ೕ+ೆ Sಾವt ಬರುವ +ೇTೆjಾಗ(ೇ ಮುಖ a[ಕ ಾದ Nಾವt 'ಾ(ೆ ೆ
ಬಂದದGನುo SೋI ಮತ3ಷು8 ಾಳUಂದ ಾಂ ಜಯಂ0 ಆಚರ ೆಯ : NೊಡL ೊಂಡು ತಮ?
hೊNೆಯ :ರುವ ಕ%ಮjಾನವನುo ಾIರುNೆ3ೕ+ೆ ಈ wನದಂNೆ WWಎಂ€ ವ0Oಂದ ನಮ? 'ಾ(ೆಯ
ರಂಗಮಂwರದ : ಸ ಾ"ರ ವ0Oಂದ ನvೆಯುವ ಾಂ ಜಯಂ0 ಾಯ"ಕ%ಮದ Sೇರ ಪ%7ಾರವನುo
ೕ[ ೆ ಾಡಲು ಎ.ಇI +ಾ. ಮತು3 7ೌಕಯ" ಾIರುNಾ3 ೆ ಾಯ"ಕ%ಮದ Sೇರ ಪ%7ಾರವನುo
ೕ[ ೆ ಾಡಲು ಎ : ೆ ಇಂಟSೆ"e ವ ವ7ೆbಯನುo ಕ Eಸಲು Fಮ? ‹ ೈ. ಅನುo ರಂಗ ಮಂwರ ಎ.
ಇI +ಾ ನ :ಟು8 ಾಂ ಜಯಂ0 ಆಚರ ೆಯ : NೊಡLರುNಾ3 ೆ jಾ x" SಾಯಕSಾದ Sಾನು ಎ.
ಇI +ಾ. ನ : Sೇರ ಪ%7ಾರ+ಾಗುವ ಾಂ ಜಯಂ0 ಾಯ"ಕ%ಮದ Cೕ nlಾರ ೆಯನುo
ಾಡು03ದುG ಈ ಸಂದಭ" ದ : ತಮ? Cೕ ನ ೌರವ €%ೕ0Oಂದ ತಮ? ‹ ೈ. ಅನುo
ಬಳP ೊಂಡು ಾಂ ಜಯಂ0ಯ ಶು;ಾಶಯಗಳ 0rಸುವ ಸಂಬಂಧ ತಮ? Œೕ ೋ ೆ ಾ•ಾ@ಧBಜದ
ಾ UËæAqï ಅನುo ಎIe ಾI ಾಂ ಜಯಂ0ಯ ಶು;ಾಶಯಗಳ ಶು;ಾಶಯಗಳ Fೕಡುವ ಸಂಬಂಧ
Fಮ? ‹ ೈ. ನ 7ೆ8ೕಟ ೆ ಎIe ಾIರುವ ಒಂದು Œೕ ೋವನುo \ಾ†ರುNೆ3ೕSೆ ಇದ ೆH
ಾರಣ+ೇSೆಂದ ೆ Fಮ? ೆ ಾಷ@ಪ0ಯ ಾರಣ+ಾLರುತ3jೆ Fಮ? ಅನುಮ0 ಇಲ:jೆ Fಮ? ‹ ೈ.
ನ : ಉಪŽೕLPದುG \ಾಗೂ 7ೆ8ೕಟ Œೕ ೋಗಳನುo \ಾ†ದುG ನನo ಅಪ ಾಧ+ಾLರುತ3jೆ ಮNೊ3C?
ಇಂತಹ ತಪEನುo ಾಡುವtwಲ: ಎಂದು ತಮ? : ಮನಪ•ವ"ಕ+ಾL [Cಯನುo Žೕ<ಸು03jೆSೆ.

ೌರವ ಪ•ವ"ಕ ವಂದSೆಗTೆ ಂw ೆ

wSಾಂಕ: 12/10/2024 (ಯಶವಂ• ೌಡ)
ಾಗಲಗುಂ ೆ, jಾ x"

ತಂjೆಯತ3 NಾO ಕvೆOಂದ
57

ನಮ? ಮಗ 0rಯjೆ ತಪtE ಾIರುNಾ3Sೆ ದಯ ಟು8 [fP.

ತಂjೆ NಾO
SD/- SD/-"
(sic)

A show cause notice comes to be issued to the petitioner on

07-10-2024. The show cause notice is replied to by the petitioner

which becomes necessary to be noticed. It reads as follows:

" ೆ,
|ೇತ% a[ ಾ ಾ ಗಳ ,
'ಾ(ಾ a[ಣ ಇ(ಾsೆ,
ೆಂಗಳ ರು ಉತ3ರ ವಲಯ-04.

ಇಂದ,

+ೇಣು ೋ#ಾ. W.P.
ಮುಖ a[ಕರು, ಸ ಾ" #ೌ%ಢ'ಾ(ೆ,
ಾಗಲಗುಂ ೆ, ೆಂಗಳ ರು ಉತ3ರ ವಲಯ-04

ಾನ ೇ,

ಷಯ:- " ಾರಣ ೇr Sೋg ೆ 'ತ ರೂಪದ ವರ ೆಯನುo Fೕಡುವ ಬ ೆ„".
ಉ(ೆ:ೕಖ:- ಪತ% ಸಂsೆ : P2.ಸ.#ೌ%.'ಾ.ಮು. ಾ. ೇ.Sೋ 36/2024-25 wSಾಂಕ:
03/10/2024 |ೇತ% a[ ಾ ಾ ಗಳ ಕ'ೇ , ಉ.ವ-04

**********

CೕಲHಂಡ ಷಯ ಮತು3 ಉ(ೆ:ೕಖ ೆH ಸಂಬಂ PದಂNೆ Sಾನು ಸ ಾ" #ೌ%ಢ'ಾ(ೆ
ಾಗಲಗುಂ ೆ 'ಾ(ೆಯ : wSಾಂಕ:- 01/10/2018 ಂದ ಕತ"ವ Fವ"}ಸು03ದುG, ಇ(ಾsೆಯ
Fಯಮಗr ೆ ಅನು7ಾರ+ಾL ೆಲಸ Fವ"}P 'ಾ(ೆಯನುo ಸ+ಾಂ"Lೕಣ+ಾL ಅ"ವೃwk ೊrಸುವ
ೆಲಸ ಾಡು03ದುG, ಮಕHr ೆ ಗು ಾತ?ಕ+ಾದ a[ಣವನುo Fೕಡುವtದ ೊಂw ೆ 458 ಇದG jಾ x"ಗಳ
58

ಸಂsೆ ಯನುo 1186 ೆH \ೆ<‰ಸುವtದ ೊಂw ೆ 10 ;ಾಗಗrಂದ 20 ;ಾಗಗr ೆ \ೆ<‰PರುNೆ3ೕ+ೆ.
ಎ .ಎ .ಎ..P ಪ ೕ|ೆಯ : ಉತ3ಮ ಫ Nಾಂಶವನುo Fೕಡುವtದ ೊಂw ೆ ಕTೆದ 5ವಷ"ಗಳ :
ಉತ3ಮ ಫ Nಾಂಶ ಪvೆದ 15 jಾ x"ಗr ೆ ಸ ಾ"ರದ ವ0Oಂದ (ಾ 6 ಾ6 ಪtರ7ಾHರ ಪvೆಯಲು
ಶ%fPjೆGೕSೆ. ಎZ.ಎಂ.ಎಂ.ಎ ಪ ೕ|ೆಯ : ಕTೇದ 5 ವಷ"ಗಳ(ೆ:ೕ Nಾಲೂ:†ನ :-ೕ ಅ0 \ೆಚು‰
jಾ x"ಗಳ ಉ03ೕಣ"+ಾಗುವಂNೆ ಶ%fPರುNೆ3ೕSೆ. ಕTೆದ 12 ವಷ"ಗrಂದ cಾವtjೇ ಕಪtE ಚು ೆH
ಇಲ:jೆ ಇ(ಾsಾ Fಯಮಗr ೆ ಅನು7ಾರ+ಾL ಕತ"ವ Fವ"}PತುNೆ3ೕSೆ ಎಂಬ ಅಂಶಗಳನುo
ೌರವಪ•ರಕ+ಾL ತಮ? ಗಮನ ೆH ತರಬಯಸುNೆ3ೕSೆ.

ಮುಂದುವ ೆದು Cೕ ನ ಉ(ೆ:ೕಖದ ಅನnಯ Sಾನು ಾಂ ಜಯಂ0ಯ wನದಂದು ನನo
+ಾ ಟ56ನ 7ೆ8ೕಟ ನ : 'ಹುಟು8 ಹಬˆದ ಶು;ಾಶಯಗಳ ಮ\ಾತ?' ಎಂಬ a ೋSಾCಯI
ೌ ಾ+ಾFnತ ಾಷ@ಧBಜದ Cೕ(ೆ ಶ-- ಧ P Fಂ0ರುವ \ಾ ೆ ;ಾವ<ತ%ವನುo \ಾ† ೊಂಡು
ಾಷ@ಧBಜ ೆH ಅ ೌರವ \ಾಗೂ ಅಪ ಾನ ಾIರು03ೕರ ಎಂದು a%ೕ W.ಎಂ <ಕHಣ• ಾhಾ ಧ [ರು,
ಹೂಮZ ೈe5 %ೕ ೆ[Z ಕfg, <ಕH ಾ ಾ+ಾರ, ೆಂಗಳ ರು ಅವರು ನನo ರುದk ದೂರು
ಸ :PರುNಾ3 ೆ ಎಂದು 0rೕP ಾರಣ ೇr Sೋg ನುo hಾ ಾIರುವtದು ಸ ಯ•ೆ8. ಅದ ೆH
ಸಂಬಂ PದಂNೆ wSಾಂಕ 02/10/2024 ರಂದು ಾಜ ಸ ಾ"ರದ ವ0Oಂದ ನvೆಸ(ಾಗು03ದG ಾಂ ೕ
ಜಯಂ0 ಆಚರ ೆಯ Sೇರ ಪ%7ಾರವನುo ೕ[ ೆ ಾಡಲು W.W.ಎಂ.€.ಯ ವ0Oಂದ ನಮ? 'ಾ(ೆಯ
ರಂಗಮಂwರದ : ಎ..ಇ.I +ಾ. ಅನುo ಅಳವIPದುG ಅದ ೆH ಇಂಟ`Sೆe ವ ವ7ೆbಯನುo ನನo
‹ ೈ. \ಾe 7ಾEe ಅನುo ಬಳP ೊಂಡು ಕ EPದುG, ನನo ‹ ೈ.ನುo ರಂಗಮಂwರದ :-ೕ ೆr ೆ„
07:30 ಗಂ ೆOಂದ ಇg8ರುNೆ3ೕSೆ. ನಂತರದ ಸಮಯದ : 'ಾ(ೆ ೆ ಆಗfPದ ಎ ..I.ಎಂ.P
ಸf0ಯವ ೊಂw ೆ 7ೇ ೊಂಡು ಾಂ ಜಯಂ0ಯ ಆಚರ ೆ \ಾಗೂ ಸ ಾ"ರದ Sೇರಪ%7ಾರವನುo
ೕ[ ೆ ಾಡುವtದರ : NೊಡL ೊಂIರುNೆ3ೕSೆ.

ಈ ಸಂದಭ"ದ : ನಮ? 'ಾ(ೆಯ : 10Sೇ ತರಗ0ಯ : +ಾ ಸಂಗ ಾಡು03ದG ಯಶವಂ•
ೌಡ \ಾಗೂ ಅವನ ಸಂಗIಗರು ನನo ಅನುಮ0 ಇಲ:jೆ ನನo ‹ ೈ.ನುo ರಂಗಮಂwರದ :-ೕ
ಬಳP ೊಂಡು ಮುಖ a[ಕರ Cೕ ನ €%ೕ0 ಅ" ಾನwಂjಾL ನನo ಒಂದು Œೕ ೋವನುo ಎIe
ಾI ಾ Y ೌಂ˜ನ : ೌರ+ಾFnತ ಾಷ@ಧBಜವನುo ಇ P ಅದರ ಮುಂjೆ ನನo Œೕ ೋವನುo
ಎIe ಾI "ಹುಟು8 ಹಬˆದ ಶು;ಾಶಯಗಳ ಮ\ಾತ?" ಎಂಬ a ೋSಾCಯIಯ : ನನo +ಾ ಟ56
ನ 7ೆ8ೕಟ ೆ Œೕ ೋವನುo \ಾ†ರುNಾ3 ೆ. ಈ cಾವtjೇ ಷಯವt ನನo ಗಮನ ೆH ಬಂwರುವtwಲ:.
Sಾನು ಸ ಾ"ರದ Sೇರ ಾಯ"ಕ%ಮವನುo ೕ[ ೆ ಾಡುವ : Fರತ ಾLNೆ3ೕSೆ. ಈ ಸಂದಭ"ದ : ನಮ?
'ಾ(ೆ ೆ ಬಂದಂತಹ ಸುವಣ"ನೂ \ಾಗೂ ಕನoಡಪ%ಭ ವರw ಾಗರರು ನನoನುo ಮುಖ a[ಕರ ೊಠI ೆ
ಕ ೆP ೊಂಡು Fಮ? ‹ ೈ.ನ : ಇದGಂತಹ 7ೆ8ೕಟ ನ ಬ ೆ„ 0rPರುNಾ3 ೆ. ಅ :ಯವ ೆಗೂ ನನo
‹ ೈ. ಅ : 7ೆ8ೕಟ \ಾ†ರುವtದು ನನo ಗಮನ ೆH ಬಂwರುವtwಲ:. ನನ ೆ ನನo 7ೆ8ೕಟ ನ : Œೕ ೋ
ಬಂwರುವtದನುo ಸುwG+ಾ}Fಯವ ೇ ನನ ೆ ಮುಖ a[ಕರ ೊಠIಯ : Nೋ PರುNಾ3 ೆ. ಆ ಕೂಡ(ೇ
59

ಅದನುo I ೕe ಾI ಇದು ನನo ಗಮನ ೆH ಬರjೇ jಾ x"ಗrಂದ ಆLರುವ ತ#ೆEಂದು
ಸುwG+ಾ}Fಯರ : [Cಯನುo ಸಹ ೋ ರುNೆ3ೕSೆ.

ನಂತರ ನನo ‹ ೈ. ಅನುo ನನo ಅನುಮ0 ಇಲ:jೆ Nೆ ೆದು ೊಂಡ jಾ x" ೆ
0rವr ೆಯನುo FೕIದ ನಂತರ ಆ jಾ x"ಯು [ ಾಪ ೆಯ ಪತ%ವನುo FೕIರುNಾ3Sೆ. ಅದರ
ಪ%0ಯನುo ತಮ? ಅವ ಾಹSೆ ೆ ಇದ ೊಂw ೆ ಲಗ03Pjೆ. ನಂತರ ಸು ಾರು ೆr ೆ„ 11ಗಂ ೆ 15 Ffಷ
ಸು ಾ ನ : ದೂರುjಾರ ಾದ a%ೕಯುತ W.ಎಂ.<ಕHಣ• ನವರು ನನ ೆ +ಾ ಟ56 ಸಂjೇಶವನುo ಕಳ }P
ಈ ಷಯದ ಬ ೆ„ ಪ%7ಾ3€PರುNಾ3 ೆ. ಅವ ಗೂ ಸಹ Sಾನು ಇದು ನನo ಗಮನ ೆH ಾರjೆ ಸಂಬ Pರುವ
ಘಟSೆcಾLದುG, ಮNೊ3C? ಇಂತಹ ಘಟSೆಗಳ ಸಂಭ ಸದಂNೆ ಎಚ‰ರ ವ}ಸುNೆ3ೕSೆ ಎಂದು [Cಯನುo
ೋ ರುNೆ3ೕSೆ. ಅದರ ಪ%0ಯನುo ಲಗ03PರುNೆ3ೕSೆ ಎಂಬ ಅಂಶವನುo ತಮ? ಗಮನ ೆH ತರಬಯಸುNಾ3
ದೂರುjಾರರು FೕIರುವ ದೂ ಗೂ ನನಗೂ cಾವtjೇ ಸಂಬಂಧ ರುವtwಲ: ಎಂಬುದನುo
ನಮ%NೆOಂದ ತಮ? ಗಮನ ೆH ತರಬಯಸುNಾ3 ಾರಣ ೇr Sೋg ೆ 'ತರೂಪದ ವರ ೆಯನುo
ಸ :ಸು03jೆGೕSೆ.

ೌರವ ಪ•ರಕ ವಂದSೆಗTೆ ಂw ೆ,
ತšಮ ನಂಬು ೆಯ
ಸ}/-
ಮುಖ aಕ [ಕರು
ಸ ಾ" #ೌ%ಢ'ಾ(ೆ ಾಗಲಗುಂ ೆ
Sಾಗಸಂದ% ಅಂlೆ, ೆಂಗಳ ರು ಉ.ವ-04
ೆಂಗಳ ರು ಉ, U(ೆ:-560 073.

ಸbಳ:- ಾಗಲಗುಂ ೆ
wSಾಂಕ:-7/10/24

ಅಡಕಗಳ :-

1. jಾ x"ಯ [ ಾಪ ೆ ಪತ%
2. ದೂರುjಾರ ೆ ಕಳ }Pರುವ +ಾ ಟ56 ಸಂjೇಶ."
60

It now becomes necessary to notice how the picture is edited and

placed on the National Flag. The original picture of the petitioner is

as follows:
61

The picture of the National Flag with the petitioner is as follows:

If the two are seen in juxtaposition, it becomes clear that a picture

of the petitioner taken elsewhere is edited and placed on the
62

National Flag. It ostensibly cannot be by the petitioner himself, but

as admitted, by the student. The petitioner has also given plausible

explanation for the students so doing. Even otherwise there are no

antecedents of the petitioner that would entail investigation in the

case at hand. He is a teacher who has been the Principal of the said

institution for the last 7 to 8 years and not had an incident of the

kind that is now projected.

10. Therefore, holding no mens rea and inherent

improbability in doing the said act, as interpreted by various High

Courts, I deem it appropriate to obliterate further investigation into

the matter. The Apex Court in the case of STATE OF HARYANA v.

BHAJAN LAL9, has held as follows:

".... .... ....

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 extraordinary 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 abuse of 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

9
1992 Supp (1) SCC 335
63

sufficiently channelised 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.

(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.
64

(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."

(Emphasis supplied)

Every High Court noticed supra which have interpreted Section 2 of

the Act have clearly held that lack of mens rea would necessarily

lead to quashment of proceedings for an offence under Section 2 of

the Act, as the word employed is 'intentional'. I do not find any

deliberate act on the part of the petitioner in the alleged crime.

11. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) FIR in Crime No.377 of 2024 pending before the XXXI Additional Chief Judicial Magistrate, Bangalore city stands quashed.

Sd/-

(M.NAGAPRASANNA) JUDGE Bkp/CT:MJ