HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.7598 OF 2007 Dated : 26.08.2010. Between : K.Keshav Rao … Petitioner a n d The State of A.P. & another … Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.7598 OF 2007 ORDER: This Criminal Petition under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the petitioner seeking to quash the order dated 13.08.2007 in C.C.SR.No.5108 of 2007 by which the learned I Additional Chief Metropolitan Magistrate, Hyderabad, referred the private complaint lodged by the second respondent herein to the Station House Officer, Saifabad Police Station, under Section 156 (3) of the Code of Criminal Procedure for investigation and report. The complainant-second respondent herein, who is a Practicing Advocate, filed the present complaint against the petitioner and also against Smt.Sonia Gandhi, President, Indian National Congress (Congress-I). The allegations made therein, in a nutshell, are as follows: That on 14.05.2007 he personally saw the tri-coloured Flag belonging to Congress-I Party containing the photo images of Smt.Sonia Gandhi (A.2), Late Rajiv Gandhi, Dr.Y.Rajasekhar Reddy (the then Chief Minister of Andhra Pradesh), Rahul Gandhi (Member of Parliament) and K.Kesava Rao (A.1), the President of Congress Committee-I (INC) of Andhra Pradesh, along with symbols of ‘Hand’ in the middle of the Flag and the said Flag was resembling the Indian National Flag. Having seen the mis-utilisation of the National Flag, he was very much annoyed for the usage of Tri-colour Flag in violation of the provisions of the Prevention of Insults to National Honour Act, 1981 (for short ‘the Act’), issued a notice on 18.05.2007 to the accused not to use the Tri-colour flag as their party flag, against which, the second accused gave a reply dated 15.06.2007 acknowledging the receipt of notice and also to have noted the suggestions of the complainant. But no steps were taken by either of the accused for removal of the Tri- colour flag. Being aggrieved by the same, he filed the present complaint before the learned Magistrate seeking to punish the accused under the provisions of The Prevention of Insults to National Honour Act, 1971, as amended by the provisions of Prevention of Insults to National Honour (Amendment) Act, 2003. When the said complaint is filed before the learned I Additional Chief Metropolitan Magistrate, the same was forwarded to the Station House Officer, Saifabad Police Station, under Section 156 (3) of the Code of Criminal Procedure on 13.08.2007 for investigation and report. The said order of the learned Magistrate was squarely published in the News Papers and was also telecasted in Media. The petitioner having come to know about the same filed the present Criminal Petition and obtained an order of stay of further proceedings. In fact, in view of the stay granted by this Court no case is registered and still F.I.R is yet to be registered for the purpose of investigation. Heard. Learned counsel for the petitioner submitted that the entire reading of the complaint does not disclose any offence while so, the order passed by the learned Magistrate under Section 156 (3) Cr.P.C. is erroneous and the same should be quashed. The respondent counsel appeared before the Court in the first hearing and subsequently even after repeated adjournments, he failed to appear before the Court. The impugned order runs as follows: “Complainant present. At the request of the Counsel for Complainant, the complaint is referred to the Station House Officer, Police Station, Saifabad, Hyderabad, for investigation under Sec.156 (3) of Criminal Procedure Code and report. Call on 28th September, 2007”. On filing of a complaint under Section 200 Cr.P.C., the learned Magistrate is empowered either to forward the same to concerned Police for investigation or to take cognizance of the same and proceed in accordance with the provisions of Sections 200, 202 and 203 Cr.P.C. Such forwarding of complaint under Section 156 (3) Cr.P.C. is a pre-cognizance stage wherein the learned Magistrate is not taking cognizance of the offence but only forwarding the complaint for the purpose of investigation. This Court is of the view that the learned Magistrate should peruse the contents of the complaint prior to forwarding the same for investigation and ascertain as to whether any offence is made out from the contents of complaint requiring investigation. Forwarding of a private complaint to concerned Police for investigation will not seize the powers of the learned Magistrate from perusing the contents of complaint merely because he is not taking cognizance of the complaint. In the present case, the order passed by the learned Magistrate, mentioned above, clearly shows that the Magistrate has forwarded the complaint only at the request of the counsel for the complainant. He forwarded the same even without reading the complaint or perusing the contents of complaint. The said act of the Magistrate led to filing of the present Criminal Petition before this Court. The Apex Court in Maksud Saiyed Vs. State of Gujarat and others[1] observed that where a jurisdiction is exercised on a complaint petition filed in terms of Section 156 (3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. In the present case, it is apparently evident that the learned Magistrate has not applied his mind in forwarding the complaint to the investigating agency. Hence, the order passed by the learned Magistrate is liable to be set aside. Accordingly, the said order is set aside. The present Criminal Petition is filed by the petitioner at a premature stage i.e. even prior to registration of crime. This Court perused the entire records. Generally, this Court will not allow the investigation to be nipped in the bud. But, in view of the erroneous order passed by the learned Magistrate, this Court is of the view that the present case requires interference of this Court. For better adjudication of the merits of the case, Section 2 of the Act is hereby extracted: 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. The main intend of the Legislature to enact such an Act is that there should not be any dishonor to the Indian National Flag. Here the case of the complainant is that the Tri-colour of the said political party flag resembles the Tri-colour of the National Flag, which amounts to an offence under the provisions of the Act. But, nowhere in the Act it is seen that usage of such colour is an offence. The offence mentioned in the said Act is of dishonouring the National Flag by way of burning, mutilating, defacing, defiling, disfiguring, destroying or trampling. From the reading of the entire complaint, the grievance of the petitioner is not that. In this context, it is pertinent to mention the origin and formation of Indian National Flag. To select a flag for Independent India, on 23.06.1947, the Assembly set up an ad hoc committee headed by Rajendra Prasad, Maulana Abul Kalam Azad, Sarojini Niadu, C.Rajagopalachari, K.M.Munshi and B.R.Ambedkar as its members. On 14.07.1947, the committee recommended that the flag of Indian National Congress be adopted as the National Flag of India with suitable modifications so as to make it acceptable to all parties and communicates. It was also resolved that the flag should not have any communal undertones. The spinning wheel of the Congress flag was replaced by the Chakra (wheel). According to Sarvepalli Radhakrishnan, the Chakra was chosen, as it is representative of Dharma and Law. The flag was proposed by Nehru at the Constituent Assembly on 22.07.1947 as a horizontal tri-colour of deep saffron, white and dark green in equal proportions, with the Ashoka wheel in blue in the center of the white band. Thus, from the history of the Indian National Flag, it is clear that even prior to designing the National Flag, the usage of tri-colour by the said political party was in existence. In these circumstances, this Court is of the view that usage of tri- colour by the said Political Party by no stretch of imagination can be said to be dishonour to the Indian National Flag and the present complaint appears to be filed with an intention to have wide publicity, which amounts to an abuse of process of Law. Hence, this Court has no hesitation to quash the present complaint. Accordingly, the Criminal Petition is allowed and the proceedings in C.C.SR.No.5108 of 2007 on the file of the I Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed. _________________________ JUSTICE RAJA ELANGO Dated : 26.08.2010 Note : L.R. copy to be marked. B/o. sur [1] 2008 (5) SCC 668