Sushri Suman Bahanji Aand Three Others vs State Of Uttarakhand And Others

Alok Kumar Verma, J

This Criminal Misc. Application is preferred under Section 482 of the Code of the Criminal Procedure, 1973 (hereinafter referred to as “the

Codeâ€) for quashing the F.I.R. dated 17.11.2012, registered with Police Station Kankhal, District Haridwar as Case Crime No.237 of 2012 under

Section 2 of the Prevention of Insults to National Honour Act, 1971 (in short as ‘the Act, 1971’) and entire subsequent proceedings as well as

the summoning order dated 19.09.2013 passed by the learned Additional Chief Judicial Magistrate, Haridwar in Criminal Case No.1383 of 2013

‘State vs. Jaideep Arya and three others’.

Facts, to the limited extent necessary, are that the F.I.R. was lodged in the light of an information of Rana Ranveer Singh, Pradesh Pramukh,

Samajik Sena. According to the F.I.R., on 07.10.2012, there was a demonstration in front of Police Station Kankhal by the supporters of Yog Guru

Baba Ramdev and Bharat Swabhimaan Trust over the arrest of a Journalist. The said demonstration ended on 16.10.2012 on the assurance of the

Administration. The National Flag of India was insulted by the supporters of Baba Ramdev in front of Police Station Kankhal. Attaching some

photographs with this information, it had been requested that a strict action should be taken against those who insulted the National Flag by registering

a case of sedition and strict action should be taken against government employees in front of whom the National Flag was insulted.

The F.I.R. was registered against the applicant-accused Dr. Jaideep Arya and unknown supporters of Bharat Swabhimaan Trust. After

investigation, the charge-sheet was filed against all the applicants-accused persons.

The learned Additional Chief Judicial Magistrate, Haridwar took the cognizance of the offence punishable under Section 2 of the Act, 1971 and

summoned the applicants-accused persons. After filing of this Criminal Misc. Application, further proceedings of Criminal Case No.1383 of 2013,

‘State vs. Jaideep Arya and others’ were stayed.

Heard Mr. Pradeep Kumar Chauhan, learned counsel for the applicants, Mr. Atul Kumar Sah, learned A.G.A. for the State of Uttarakhand and

perused the records.

The learned counsel for the applicants submits that the learned Magistrate took cognizance without application of mind; the applicants are not

named in the information given by the informant; the informant/ respondent No.4 died on 30.06.2019; the offence punishable under Section 2 of the

Act, 1971 is not made out against the applicants; there was no intention to disrespect the National Flag by any of the participants nor any disrespect

was committed by either of them; the F.I.R. and subsequent investigation was conducted with the sole intention to defame the applicants; one of the

applicants belongs to freedom fighter’s family of India and working for the country for many years; the applicants cannot be sent up for trial on

account of vicarious liability as held by the Madhya Pradesh High Court in Ganesh Lal Bathri vs. State of M.P., 2004 Cri.L.J. 1002.

The learned counsel for the State submits that the proceedings to withdraw from prosecution of this case is pending before the Government.

The inherent powers under Section 482 of the Code include powers to quash F.I.R., investigation or any criminal proceedings pending before any

court subordinate to it. Such power can be exercised to secure ends of Justice, to prevent abuse of process of any court and to make such orders as

may be necessary to give effect to any order under this Code, depending upon the facts of a given case.

The inherent powers of the Court can be invoked in three situations indicated in Section 482 of the Code :

(i) in order to give effect to an order passed under the Code, or

(ii) to prevent abuse of process of the Court, and

(iii) to secure the ends of Justice.

Such powers should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice.

In State Of Karnataka vs L. Muniswamy & Ors, (1977) 2 SCC 699, the Hon’ble Supreme Court observed that the wholesome power under

Section 482 of the Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue

would be abuse of the process of the Court or ends of Justice require that the proceeding ought to be quashed.

In State of Haryana and others Vs. Bhajan Lal and others, (1992) Supplementary (1) SCC 335, the Hon’ble Apex Court examined the

extraordinary power under Article 226 of the Constitution of India and also the inherent powers under Section 482 of the Code. Para 102 of the

judgment of Hon’ble Apex Court reads as follows:-

“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 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.

(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.â€​

In Zandu Pharmaceutical Works Ltd. and others vs. Mohd. Sharaful Haque & another, (2005) 1 SCC 122, the Hon’ble Supreme Court

observed that it would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In

exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process

of Court or quashing of these proceedings would otherwise serve the ends of justice.

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 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.

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.â€"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.â€"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.â€"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.â€"The expression “public place†means any place intended for use by, or accessible to, the public and includes any public

conveyance.

Explanation 4.â€"The disrespect to the Indian National Flag means and includesâ€

(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,â€

(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 subject; or

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

(l) intentionally displaying the Indian National Flag with the “saffronâ€​ downâ€​.

A bare reading of abovementioned provision would clearly indicate that 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 punishable with imprisonment for a period of

three years, or with fine, or with both.

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.

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 of these witnesses had given any clear

evidence that the National Flag was insulted by these applicants-accused persons. The case of 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 Flag to touch the ground or

they were eating on the Flag.

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.

The learned counsel for the applicants relied upon the judgment of Madhya Pradesh High Court inG anesh 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.â€​

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.

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 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.

In view of the above detailed discussion, this Court is of the opinion that the present case falls under the 1st and 5th category set out in the para

102 of the judgment in the case of State of Haryana and others vs. Bhajan Lal (Supra). In the result, this Criminal Misc. Application, filed under

Section 482 of the Code, is allowed and the F.I.R. dated 17.11.2012, registered with Police Station Kankhal, District Haridwar as Case Crime No. 237

of 2012, the charge-sheet dated 27.02.2013, filed against the applicants-accused persons, and entire subsequent proceedings as well as summoning

order dated 19.09.2013, passed by the learned Additional Chief Judicial Magistrate, Haridwar in Criminal Case No.1383 of 2013, “State vs. Jaideep

Arya and three othersâ€​, are hereby quashed. No order as to cost.