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Judgment
Heard Sri.Saddam Hussain Darvaseb, learned counsel for the petitioner/accused, Sri.Praveen Y.Devareddiyavar, learned HCGP for the respondent No.1-State.
The petitioner/accused has filed this petition under Section 528 of BNSS, 2023 (Section 482 of Cr.P.C.) seeking to quash the entire proceedings in connection with crime No.133/2019 of Hirehadagali Police Station, registered for the offences punishable under Sections 124(A) and 153(B) of IPC and Section 2 of the Prevention of Insult to National Honors Act, 1971, pending on the file of the III Additional District and Sessions Judge, Hosapete in S.C.No.5040/2020.
The brief facts of the prosecution case in nutshell are as under:
On 15.08.2019, the defacto complainant lodged the complaint making allegation against the accused as he had uploaded a video in his WhatsApp status which contains his photo by holding the Indian flag, which contains half-moon of Pakistan flag. On seeing this, the first informant called the accused and advised him not to post such video. In turn, the accused replied that he voluntarily posted the said video. Thus, after verifying the same, the defacto complainant, ultimately lodged the complaint against the petitioner/accused. Thereafter, the Investigating Officer investigated the matter and filed the charge sheet against the accused.
Taking exceptions to the same, the petitioner/accused has filed this petition.
Learned counsel for the petitioner vehemently contended that the petitioner is falsely implicated in this case. The petitioner had no intention to insult the National Flag nor had any knowledge about what was being displayed in his mobile. He uploaded the photo in his WhatsApp status alone and he has not forwarded the photo to anybody. The petitioner is a law student and 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. Hence, on these grounds, learned counsel for the petitioner prayed to allow the petition.
Per contra, learned HCGP vehemently contended that the petitioner is standing in the photograph holding the National Flag. Whether somebody have edited or posted it or otherwise must necessarily mean that the case has to be tried by the trial court. Hence. Learned HCGP prayed to dismiss the petition.
I have carefully perused the material available on record and considered the submissions made by the learned counsel for the parties.
The perusal of the charge sheet material, it appears that the accused had uploaded a video in his WhatsApp status by holding National Flag, which contain a half-moon of Pakistan Flag. Whether the petitioner has uploaded the said photo intentionally or not has to be decided in the trial.
The counsel for the petitioner vehemently contended that in order to prosecute the petitioner, sanction is must, as required under Section 186 of BNSS, 2023 and the video in question has not been sent to FSL to examine its genuineness and Section 65B certificate also not obtained in this case.
The factum of sanction is a mandatory provision and the Investigating Officer has to secure sanction in order to prosecute a person in a criminal case of present nature. In catena of judgments, the Hon'ble Apex Court in various judgments held that the sanction can be secured till conclusion of the trial. Further, the disputed video and non-production of 65B certificate do not vitiate the entire proceedings and it can be cured at the appropriate level. Hence, at this juncture, the petitioner is disputing the question of fact and that cannot be gone into under Section 482 of Cr.P.C. The petitioner has not made out any grounds to quash the proceedings.
Accordingly, the Court proceeds to pass the following:
ORDER
The petition filed under Section 528 of BNSS, 2023 (Section 482 of Cr.P.C.) is hereby dismissed.
The observations made herein are only for the purpose of disposal of this criminal petition.
Pending I.A’s, if any, stand disposed of, as it do not survive for any consideration.