IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Bail Appl..No. 7211 of 2008() ----------------------------- CRIME NO. 827/2008 OF KODUNGALLUR POLICE STATION PETITIONER/ACCUSED NO.2:- --------------------------------------------- M.N. RAVI VARMA, PRINTER & PUBLISHED MATHRUBHUMI THRISSUR EDITION, RES. AT SRINIKETHAN,222, MAVELIPURAM, KAKKANADU, KOCHI. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 7211 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of November,2008 O R D E R Petition for anticipatory bail. 2. The alleged offence is under sections 509 IPC and 2(b) and 2(e) of the Prevention of Insults to National Honour (Amendment) Act, 2003. According to prosecution, a photograph of a woman appeared in the Mathrhubhumi daily dated 15-8- 2008, in which a woman was wearing an apparel having tri-colour of Indian National Flag and a complaint was filed that the advertisement was caused to be published by a jewellery through a advertising agency and all of them have committed the offences by use of the portion of the National Flag. 3. Petitioner is the 2nd accused who is the printer and publisher of Mathrubhumi daily. Learned counsel for petitioner submitted that petitioner is not liable for the advertisement published in the newspaper because there is another person in the establishment who is dealing with this section. Petitioner is not a person who is responsible for receiving and selecting the advertisement to be published in the newspaper. It is also submitted that the alleged offences are not attracted in this case and that co-accused were granted anticipatory bail by this Court as per order dated in B.A. Nos.6697 and 6710/2008. Therefore, BA 7211/08 -2- anticipatory bail may be granted to petitioner also, it is submitted. 4. This petition is strongly opposed. Learned Public Prosecutor submitted that the expression, 'Indian National Flag' is defined in Explanation-2 to Section 2 of the Prevention of Insults to National Honour Act, 1971. The 'Indian National Flag' includes any visible representation of the Indian National Flag or of any part or parts thereof, made of any substance or represented on any substance. Any painting, drawing or photograph also would include the Indian National Flag and it is not necessary that the Flag as a whole is used to attract the offence, it is submitted. My attention was also drawn to Explanation-4 in Section 2, particularly sub-clause (e) which shows that the disrespect to the Indian National Flag means and includes use of the National Flag as a portion of costume below the waist or by embroidering or printing it on cushions, handkerchiefs, undergarments or any dress material. It is also submitted that the provision in the Code of India also has to be read in this context and it is clear that offence under the Prevention of Insults to National Honour Act is clearly attracted. 5. It was submitted in B.A.nos.6697 and 6710 of 2008 that BA 7211/08 -3- the three colours were used not on any dress material or dress or undergarment. It was used in a picture which is published in an advertisement. Such use of the colours of Indian National Flag will not come under Explanation-4(e)(ii), it is submitted. As per the advertisement published in the paper which is subject matter of this case, it is only made to appear that the colours of the Indian National Flag are used on a dress material which the woman had worn but, the colours were not used by petitioners on any dress material. Those were used for printing an advertisement, it is submitted. 6. On hearing both sides, I am satisfied that there is a strong arguable case for both sides. But, if anticipatory bail is refused, it is likely that petitioners will suffer irreparable injury and loss, if ultimately a finding is entered, in favour of petitioners. Hence, I am persuaded to grant anticipatory bail to petitioners and the following order is passed:- 1) Petitioner shall surrender before the investigating officer within seven days from today and in the event of his arrest, he shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for BA 7211/08 -4- the like sum to the satisfaction of the arresting officer, on the following conditions: i) Petitioner shall not tamper with evidence or commit any offence. ii) Until an order is passed on merit on the disputed issue, no advertisement, which is the subject matter of this petition, shall be published. Petition is allowed. K.HEMA, JUDGE. mn.