Maman Chand Sharma vs State Of Punjab And Others
2024 Latest Caselaw 5485 P&H

Punjab-Haryana High Court

Maman Chand Sharma vs State Of Punjab And Others on 12 March, 2024

                                                         Neutral Citation No:=2024:PHHC:035823




                                                            2024:PHHC:035823

CRM-M-5618-2024                                                            --1--


           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


                                                     CRM-M-5618-2024
                                                     Reserved on: 05.03.2024
                                                     Date of Decision:12.03.2024

MAMAN CHAND SHARMA                                                 ......Petitioner
                                        Vs


STATE OF PUNJAB AND OTHERS                                         ......Respondent(s)

CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA


Present:    Ms. Kamal Sharma, Advocate for
            Mr. Amit Arora, Advocate for the petitioner.

            Mr. Athar Ahmed, DAG, Haryana
                  ****

HARKESH MANUJA, J.

1. By way of present petition filed under 482 Criminal Procedure Code,

1973 (hereinafter referred to as "Cr.P.C") petitioner prays for quashing of

judgment dated 02.05.2023 passed in CRR-12 of 2022 by learned Additional

Sessions Judge, Bhiwani (hereinafter referred to as "Revisional Court") which

upheld an order dated 15.01.2020 passed by Judicial Magistrate 1st Class, Bhiwani

(hereinafter referred to as "JMIC") while dismissing criminal Complaint bearing

no. COMA-718 of 2019 filed for violation of Flag Code of India, 2002 (hereinafter

referred to as "Flag Code") under Section 2(2)(v) and Section 3.10 of Prevention

of Insults to National Honour Act, 1971 and amendment Act, 2005 (hereinafter

referred to as "National Honour Act") and the Emblems and Names (Prevention of

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Improper Use) Act, 1950 (hereinafter referred to as "Emblems Act") read with

Section 34 of Indian Penal Code, 1861.

2. Brief facts of the case are that on Independence Day, i.e.15.08.2016,

the National Flag was unfurled at the Government Middle School, Bhiwani.

Allegedly, the National Flag was improperly fixed on a pole to the left of the

speaker platform, and the National Song was sung in violation of the Flag Code,

National Honour Act, and Emblems Act by respondents 2 to 4. An FIR, dated

15.08.2016, was registered bearing no. 322/2016. During investigation, a site plan

(Ex. C1) was prepared by Sh. Chander Pal, DSP (HQ), Bhiwani, on the same day,

while later another site plan (Ex. C2) was prepared on 08.09.2016 by Sh.

Dharmender, Draftsman, District Police Office, Bhiwani. Respondents 2 to 4 were

acquitted in the FIR by an order dated 23.01.2018, passed by the Additional

District & Sessions Judge, Bhiwani.

3. Aggrieved thereof, the petitioner filed a criminal complaint bearing

No. COMA-718/2016 before the learned JMIC, which was dismissed vide Order

dated 15.01.2020. Subsequently, the petitioner filed revision petition in the

Revisional Court, which was also dismissed vide Judgment dated 02.05.2023.

Hence, the present petition.

4. Learned Counsel for the petitioner argued that both the Courts below

erred while dismissing the petitioner's Complaint against respondents 2 to 4 for

their alleged involvement in the insult and dishonour of the National Flag and

National Song on 15.08.2016. He contended that in both site plans, Ex. C1 & Ex.

C2, only two facts were mentioned: the place of occurrence (stage) and the place

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where the National Flag was unfurled. According to him, Ex. C1 clearly indicated

that the area marked as "B" was nothing more than a stage, whereas the location

marked as "A" was the spot where the National Flag was fixed on the ground

without a pedestal, on the left side of the speaker's stage during the unfurling.He

further argued that during the petitioner's deposition as CW-1, it was stated that he

witnessed the flagpole on the left side of the speaker's stage. Additionally, Sh.

Dharmender, while deposing as CW-3, mentioned that there was no mark to

ascertain that the pole was embedded in the ground, implying the absence of a

pedestal. Therefore, the learned Counsel asserted that respondents 2 to 4 had

violated the provisions of the Flag Code, Indian Honour Act, and Emblems Act

and should have been punished for it, according to settled legal principles.

5. Learned State Counsel on the other hand vehemently opposed the

prayer made on behalf of the petitioner and contended that the Courts below rightly

appreciated the evidence produced and prima facie no offence under the aforesaid

provisions was found thus, the order passed by ld. JMIC dismissing the petitioner's

complaint and judgment in revision warrants no interference.

6 Having heard the Counsel for both the parties and gone through the

paper-book, I am unable to find substance in the contentions raised on behalf of the

petitioner.

7 A perusal of the record shows that on the date of incident; at the time

of unfurling of the National Flag and singing of the National song petitioner's

presence at the spot looks doubtful and thus story put forth by him cannot be said

to be above suspicion. Learned JMIC vide order dated 15.01.2020 categorically

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dealt with the issue at hand and concluded that no prima-facie case to summon the

accused was made out. Relevant extract is reproduced as under: -

".......On perusal of the site plans Ex.C1 and Ex.C2, it is found that the position of speaker's platform is not shown in these site plans. Further in these site plans, it is not shown that the pole of National Flag was put on the floor without pedestal. In the site plan Ex.C1, the place marked with letter B is shown where the flag was unfurled. This site plan was prepared on 15.08.2016 by DSP, Bhiwani. In this site plan, the position of speaker platform is not shown. The site plan Ex.C2 was prepared by the Draftsman on 08.09.2016 and he was examined in the case FIR No.322/2016 as PW1. In his cross-examination, he categorically mentioned that when he visited the spot, there was no flag, chair, lecture stand etc. So, from the site plan Ex.C2 prepared by him, the position of the flag in respect to speaker's platform is not proved. The complainant has admitted that he has no photographs of the stage, flag and no recording of singing of the National Anthem in the school. In absence of recording of the singing of National Anthem, it can not be said that it was not sung in the specified time. In these circumstances, no prima-facie case is made out to summons the accused in the present case for trial........"

Even the Revisional Court vide Judgment dated 02.05.2023 while

dismissing the revision preferred by petitioner/revisionist/complainant disbelieved

his contentions that National Flag was unfurled in his presence and National song

was improperly sung and held that his testimony cannot be said to be

incontrovertible in absence of any prima facie evidence corroborating alleged

disrespect of National Flag and National song. Relevant excerpt is reproduced as

under: -

"12. A perusal of the statement of revisionist-complainant reveals that on 15.08.2016, he went to Government Middle School, M.C. Colony, Bhiwani at 8.25 A.M. alongwith Dr. Parvesh Lata and Sh. Lalit Pardhan to give a representation. Dr. Parvesh Lata being the most qualified lady was eligible person for unfurling the National Flag on the Independence Day but Vikas Kumar, Headmaster completed the ceremony before her arrival. It was unfurled by Smt. Sunia d/o Satbir Singh. Thus, it is clear that when respondent unfurled the National Flag, the revisionist- complainant was not present........

****

......The complainant has admitted that he has no photographs of the stage, flag and no recording of the singing of National Anthem in the school. Mere statement of complainant which is not corroborated by any

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evidence is not sufficient to summon the respondents as accused. In these circumstances, the learned JudicialMagistrate 1 Class, Bhiwani has rightly observed that prima-facie there is no evidence on record which is sufficient to summon the respondents as accused to face trial."

8. No substantial material on record has been pointed out before this

Court, enabling to draw a different opinion in the given facts and nothing has been

pointed out to infer that any relevant deposition or documentary evidence has

either been ignored or misread. Resultantly, in view of the discussion made herein

above, finding no illegality or perversity with the concurrent findings recorded in

the order dated 15.01.2020 passed by JMIC and the judgment dated 02.05.2023

passed by Revisional Court, present petition is dismissed.

                                                (HARKESH MANUJA)
12.03.2024                                          JUDGE
sonika

             Whether speaking/reasoned          Yes/No
             Whether reportable                 Yes/No




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