IGH COURT OF CHHATTISGARH AT BILASPUR x Writ Petitién (C) No.3412 of 200 Budumura Dharma ao n her —Versus— RESDNTS: The State o Chhattisarh. an others POST FOR ORDER ON 01 -8-2010 . VR: ‘ ; sdl— . Yb ‘Dmrendra‘S" Judge H 8 PETlTiONERS: R ad anot PONE f g d 1 / /: “M ‘ \ ‘1 Budum arma o, te . xy, g a o, - nar, i ig ( ad S, S t a_ ge aO rs, ity Li, ' mnr, rt aigarh (CG . B Lamia aed about 53 ars, Seciy pr, R/ ura Dh Ra S/o la ye urt Suevisor o Urj Nagar Clony E41, Tam Distrct Raarh, CG) M ingh /o lae D Rm, ad but 31 yea Secur G R ai wer uard, /o Jind Po imted Taa Distic R ) T of Cattigarh, te cretary ’ epartmet of o xtena firs, D..S. Bha G Sati Hoe fi, Polce St Tana,‘ Dct Raarh‘ ( esh i, Le Kamla Pra pati, ide of 59, r oly, Ra (G) he State ' hhs through Dn Hme & Eri Afa K awn, Raipur, (C) ton us Ofcer i ation mr istri ig CG) Raj Trpathi Son of at asd Trih Resnt 1 Kelo Viha Con igarh C i Peitn uticIe 2 te Constituon nia) L Present: Shri Manish Dutt th Shi SC Verma l f he Pnes. Shri um jj GovtlAdvo r s No1 d 2 wi r .. , counse or t etitior Sesh Baa, c’ate fo respondent . an . Shri Mahndra Dby Vith S Rahul nsi r redent , e ue it hri Jha, coue fo spon ad o ust, 01 O ’Dhirendra Mishra, J. , 1 hepetioe ve fid tfs wt pi a aed o ang of first . Titnrs ha le hi ri etiton nd pry fr qushi ' ion report ded ol ati Tamnar, Drct Ra der Crim No1506 f ffe ud Seti the o e .2/20 or once ner con 2 of Prevention f HIGH COURT OF CEHHATTISGARH AT BILASPUR Writ Petitij:on (C) No.3412 of 2008 ! PETITIONERS: 1 RESPONDENTS: i h Se, ' 7 (Wrt tio nderAri 26 of h ti of id §0RDER (Psse in 3% Aug 2 ) informat log at §Pice Ston isti igarh un L ’ Insults to National Honour Abt, 1971 (hereinafter referred to as ‘the Act of 1971’) as well as quashing of order dated 4m March, 2008 passed by the Chief Judicial Magistrate, Raigarh in unregistered Criminal Case/O8 (B. ' Dharma Rao & another Vs. State of Chhattisgarh & another). . Facts necessary for the purposes of this petition are that crime under Section 2 of the Act of 197:1 was registered vide Annexure-P/1 on the compiaint of one‘M.L. Sharma against JPL Management on the allegation - that after receiving report from one Santosh Mishra regarding insult to national flag, he went to the spot JPL Tamnar and found national flag tri colour flying over post thojugh it was night and darkness has set in' whereas national flag oughtito have been honourably lowered at the time of sun set, which was not; done by the JPL Management and which constitute‘insult to national iflag. Spot Panchanama was prepared and national flag was honourably lowered down and taken into possession. _ - However, after investigation,§ final report was submitted under Section 169 of the Cr.P.C., as no offenceiwas made out. . Chief Judicial Magistrate did not accept the final report and held that no law permits private institution to fly national flag in the night and they ought to have lowered down the flag after _ sunset. With these observations, a direction under Section 156 (3) of the Cr.P.C. was issued to the Superintendent of Police, Raigarh to entrust investigation to some competent officer and submit report by 24-3-2008 (Annexure-P/Z). In the meanwhile, a complaint (Anhexure-P/3) was filed by respondent No.3 for registration of the offence under Section 2 of the Act of 1971 read with ’Sections 153—A, 295-A and, 268 of the IPC against JPL and Executive Director of the Company. A‘fter recording statements of witnesses under i sections 200 and 202 of the Cr.P.C., CJM directed the Station House Officer, Tamnar to submit a report. Accordingly, final report was submitted on 4-3—2008 undef Section 169 of the Cr.P.C.. , ’ . Learned counsel for the petitioners submitted that there is no provision provided under the Act of @1971 nor under the Flag Code that Indian National Flag cannot be floWn after the sunset. There is no allegation that lndian National Flag was insulted or treated with disrespect. By the provision under rule 2.2 (xii) of the Flag Code, it is expected from the members of public to obsenj/e the decorum of lowering the National Flag at sunset so as to prevent any damage that may be caused to the National Flag while it flies largely unattended during the night. However there is neither prohibition under Section 2 of the Act of 1971 nor under i the Flag Code that on a private butlding national flag cannot be flown after. the ’sun set. There is also§ no allegation that lndian National Flag was .insulted or treated with disrespect. Thus, even if entire allegations in the first information report and the charge sheet are accepted to be proved, in I l that case also ingredients co§nstituting alleged offence are missing. The phrase “as far as possible“ occurring in rule 2.2 (xi) of the Flag Code has been interpreted by the Supreme Court. The phrase ‘as far as possible’ is not prohibitory in nature and it is discretion and not compulsion. Reliance is placed in the matter of Rajendra Singh and others Vs. State Of U.P_. and others {(13998) 7 Supreme Court Cases 654}. l lt was further argued that flag code ls not a law and a citizen cannot , be prosecuted for violating the provision Of the flag code. Rehance Is placed In the matter of Unlon of Indla Vs Naveen Jmdal and another {AIR 2004 SC 1559} as furthr rud ha lened C n a f coplaint eti of th ... culd n e n order Seci f te Cr.P.C.. . e ther han, lr sl fo rponden l r h -neawhile, Pc ed charge he bfo the ri u Setio lfh ct o 9 again te etior bscg accusd i‘Kuar, Vice reside of nal er d, arh, oever, tis, y supprg ab ct I pcred intrim rder rd J, 208 an ts ttio eserv _ ssed for eibera isreseion an uesi o . A i pet under rtile 2 of th Constitut o ia s n able on he roun aia of efcu a ae ed er Secon 48 of t C Th ers hav ol aye quas f F Aue-P/ nd t ord ‘t C directi the ie o ivestigae and e re. In su of the abo de, age st hs are fe gas h pet nd hus, the oer ae -20 dy led o ile seu i e am caot b set ide i sae. ng upon e the tr an J. era {AR 6 17 it as argued tht CJ o receip o rrt unde Sen o t as l h hs n frther a der Sen 156 (3) of he C The ncate the ase s ar as pos rule 2 of te ' Flag Cod cot b inpd s licenc e af nset It w e age tt ar JM once havig taken Z cogniznce o m under Scon 200 e CrPC o ot hav passed ay under ton 156 (3) o h On th o d eaned coune r est No.3 woud ague tat i‘the'mn the olife has fil the set ere tal Court nder cn 2 of lzie A f 171 st h pitnes and aondin e Vnodgm Pnt the Jid Pow Limite Raig hw the petioner b essin the ove fa, have rou e o on 3 uly 0 d hi pein des to . be dismi dlte mrepntat d spprson f fact wrt ition Ac; 26 e ion f Ind i ot mamtam t gd of valbility fiaCIos nd ltrnative rmey und ti 2 he rP C e petition e ny prd for hing o IR gnnexr1) a he er dated 4-3—2008 ‘ofhe JM ng pole t nt fil port purance ' ve orr chr hee a lady been ild aint te fleXIbility idid in phr a f SIble in 2 (Xi) h e ann e terrete a e to fly th flag ter su tiioners a t grd dtd 4-308 has alrea t irreversb conqence ant th se nn e as at ths tg Relyi a dcisiion in mate of Abhindan ha Vs. Dinsh‘Mish I 198 SC 1} w a M n t f epo filed r ctio 169 f he Cr P C w wel Witin i jurisdictio to direct u investigtion un ctio t Cr P i The opinion given by the Jeint Secretary of the Government of india on Lquery — “Whether national flag can be flown day and night when it is adequateiy Illumlnated” whereas in the Instant case nationai flag was found flying In the dark In an unattended place not far from public road as described In Panchanama prepared by the concerned police officer The amended Flag Code Is a product of recommendatlons of a gCommIttee- constituted by the Union of lhdia in view of the proceeding in the matter of l Union of India vs. NaveengJindai {(2004) 2 scc 510}. The Fiag Code lays down that right to fly national flag is not an absolute and unfettered right of a Citizen though It Is a gUIdelIne but It Is to be followed to the extent It prOVIdes for dignity and respect of the national flag . Heard learned counsel for th:e parties. . A prelimiriary objection h n taken by respondent No.3 with respect _ to the maintainability of this petition on the ground that the petitioners V have obtained ex—parte interim order on 3“ July, 2008 by suppressing the fact that charge sheet has already been filed against them on 30‘h'April 2008 and by dellberately gIVIng ImpreSSIon that the police has filed. '1 Khatma report under Section 169 of the Cr P C lt was also vehemently argued that after filing of the charge sheet against the petitioners a criminal case No.650/08 has been registered on 6-5-2008 and, therefore, first information report (Ahnexure—P/1) and the order of the CJM (Annexure-P/Z) cannot be set aside at this stage. I . From perusal of the writ petition l find that copy of final report under Section 173 Cr P C filed on 30‘“ April 2008 against the accused persons has already been annexed with the document of Annexure—P/1. Copy of i i i ’ix. a e I y i ihe complete charge sheet ghas also been filed by the petitioners aleng With an apphcatuon dated 14 9 2009 for taking additional documents on record and therefore the question of dellberate suppresSIon of fact 7 regardmg filing of charge sheet Is not borne out from record The Instant ’ petition has been fled on 1i—7—2008 and the petitioners have prayed for quashing of the first information report as well as the order of the CJM dated 4 3-2008 whereby Khatma report submitted by the police under Section 169 of the CrP C hast been rejected and a direction has been issued to investigate the matter As an interim order further proceedings before the trial Court has been stayed by this Court and therefore the v instant petition cannot be dismissed on technical ground that the police I has-already filed the chargge sheet against the petitioners and any outcome of the petition on mferits shall be followed by legal consequences in subsequent proceeding. .‘From'perusal of the avermient in the petition and the charge sheet it . appears that Santosh Mishra lodged written report on 18 10 2006 at about 1835 hours alleging therem that in the Jindal Power Plant Tamnar g national flag is being flown ltill'6.30 evening, which is a big insult to the national flag. After entering the above information in daily dairy at S No 644 the SHO proceeded for the spot and found national flag flying after the sunset on 18 1O 2006 He honourably lowered the flag and prepared Panchanama in the presence of .witnesses,'returned to the police station, made Icorrespionding entries in daily dairy at S. No.646 and . - I registered the crime underg Section 2 of the Act of 1971 against the- j management of JPL videAnnexure-P. H v 10.From the order sheets it appears that after investigation final Khatma report was submitted along With dlary on 1“ March 2008 lt also appears that a complaint was lodged by respondent No 3 for registration of crime 'for prosecution of the accused persons under Section 2 of the Act of 1971 with respect to the same ihcident. ln the aforesaid proceeding, after recording statement of the c‘omplainant under Section 200 of the Cr P C ' learned CJM Vide his order dated 8-1 2008 observed that from perusal of 5 the documents it is found that the police has already registered the crime ‘ against the accused persons and the matter is under investigation He further directed the SHO, "ltamnar under Section 210 of the Cr.P.C. to submit his report about investigation. In pursuance thereof, Khatma report was submitted on 15‘ Marich. 2008. however, Iearned CJM has not accepted_.the Khatma report and directed the Superintendent of Police, Raigarh to get the matter investigated from competent police officer, who . should submit his report by 24th March, 2008. The petitioners were r arrested and produced before the CJM on 28-3-2008 and they were remanded to judicial custodyé and later on, released on bail on 29—3-2008. l i .From perusal of original complaint of Santosh Mishra, first information report lodged by ASI M.L.§ Sharma .on 18—10-2006 and charge sheet available on record, the entite allegations against the accused persons is that they were responsible for flying national tri colour flag on ’1 8-10—2006 I in the JPL premises in openl place near main gate on a flag post after the , Sunset. 12.The only question for consideration in this writ petition is — whether flying ’national flag after sunset is a crime punishable under Section 2 of the Act of 1971; whether Flag Codei imposes any blanket bar on a private citizen l against flying national flagafter sunset in his premises and whether violation of any condition mentioned in the Flag Code is an offence punishable under the Act of l971? l 13.The Supreme Court of India in the matter of Naveen Jindal (Supra), while considering question whether right to fly National Flag by an Indian citizen is a fundamental right within the meaning of Article 19 (1)(a) of the Constitution of India, held thtlis‘s i “88. The right to fly the National Flag is a fundamental ‘ g right but subject }to restrictions. The right is not j: unfettered, unsubscribed, unrestricted and unchannelled onel Even assertion of the right to respectfully fly the flag vis-a-vis the mere right to fly the flag is regulated ‘and controlled by two significant parliamentary enactments, namely, the Emblems and Names (Prevention of Improper Use) Act, 1950Vand the Prevention of Insults to National Honour Act, 1971.” 14.ln the above judgment, dealing with the question whether Flag Code is a j law, it has been observed that Flag Code concededly contains the executive instructions of the Central Government. The same has been issued by the Ministry of Home Affairs and all matters relating thereto are ‘1 one of the items of business allocated to the said Ministry by the President K under the Government of ‘lndia (Allocation of Business) Rules, 1961 framed in terms of Article 7‘7 of the Constitution of India. lt has been 5i ‘ further observed that executive instruction regarding Flag Code can be replaced by another set of executive instructions and thus deprive lndian citizens from flying National Flag. i15.Finally, it has been observed in paragraph-79 thusz- , i e i e 3 “Flag Code is notva statute; thereby the fundamental right under Article§19 (1)(a) is not regulated. But the guidelines as laid down under the Flag Code deserve to be followed to the iextent it provides for preservation of' dignity and respect for the national flag. The right to fly the National Flag is not an absolute right. The freedom of expression for tthe purpose of giving a feeling of nationalism and fot that purpose all that is required “to I be done is that tltetduty to respect the flag must be strictly obeyed. ‘Thie pride of a person involved in flying the Flag is the pride to be an Indian and that, thus, in all respects to it must be shown. 'The State may not tolerate even the slightest disrespect.” l ci 2 of the Act of 1971;: deals with insult to Indian National Flag and Constitution of lndia and inblusive definition of disrespect to the Indian io Flag is given in Explanation 4. Section 2 reads asunderz-s Natnal “Whoever in any public place or in any other place within public viewi burns, mutilates, defaces. defiles, disfigures, destroys, tramples upon or [othen/vise 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 lndia or' any part thereof, shall be punished withimprisonment for a term which may extendEto three years, or with fine, or with both. Explanation 1 . xxxxj xxxx xxxx Explanation 2. xxxx xxxx xxxx XXXX XXXX Explanation 4.- The disrespect to the lndian National Flag means and includes- (a) a gross affront or indignity offered to the Indian National Flag; or I Explanation 3. xxxx \4 16.Seton x 10 dipping the Ihdian National Flag in salute to any person or thing; or 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 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 using the inpian National Flag as a portion of costume or? uniform of any description or embroidering‘ [or printing it on cushions, handkerchiefs, napkins or any dress material; or putting any ikind of inscription upon the lndian National Flag; or using the lndian National Flag as a receptacle for receiving, delivering or carrying anything except flowers petalls before the lndian National Flag is v unfurled asi part of celebrations on special occasions including the Republic Day or the independence Day; or - using the lndian National Flag as covering for a statue or a monument or a speaker’s desk or a ’ speaker’s platform; or allowing thei lndian National Flag to touch the ground or the floor or trail in water intentionally; or draping the lndian National Flag over the hood, ‘ top and sidefs or back or'on a vehicle, train, boat or an aircraftjor any-other similar object; or ,(d) l, ' (e) (f) (9) (h) ‘ (i) (k) using the lndian National Flag as covering for a building; or é (I) intentionally idisplaying the lndian National Flag with the "safflon" down.” , 17.While‘ proceedings in the matter of Naveen Jindal was pending before the Supreme Court, Union of lilndia Constituted a Committee and as per _ ' x ' recommendations of the’said Committee, Flag Code of l‘ndia, 2002 was l issued and the same came into force w.e.f. 26‘“ January, 2002. 18.The Flag Code has been, divided into three parts, Part l of the Code contains the description of the National Flag. Part ll provides for the mode and manner Of hoisting/disdlay/use of National Flag by members of the public, private organizations, educational institutions etc. Part lll of the Code relates to hoisting/display of the National Flag by the Central and State Governments and their organizations and agencies. l r l 19.From clause 2.1 of Sectionll appearing in Part ll of the Flag Code, it is ’ clear that there shall be no restriction on the display of the National Flag \ by members of general ipublic, private organizations, educational institutions etc. except to the extent provided in the Emblems and Names (Prevention‘of improper Use) Act, 1950 (for short ‘the Act of 1950’) and the Act of 1971 and any other law enacted on the subject. .20.Keeping in view the provisions of the aforementioned Act, certain guidelines have been'issued for the use of National Flag. ln sub-clause (xi) of clause 2.2 under Section 1, it is mentioned that where the Flag is displayed in open, it shouldi as far as possible, be flown from sunrise to sunset, irrespective of weather conditions. However, two parliamentary enactments, namely, the Adt of 1971 and the Act of 1950 and the rules l l i i ‘ , framed thereunder do not irhpose any such restrictions. The phrase ‘as L far as possible’ used in sub-eiause (xi) of clause 2 2 of the Flag Code also connotes the ch0ice of the concerned person and has not altogether barred flying of National Flag in open place after sunset The action ofr ‘ any indiVIdual would constitute an offence punishable under Section 2 of i the Act of 1971, if it comes yvithin any of the acts mentioned inSection 2. There is no allegation against the petitioners in the original complaint report (Annexure P/1) or the charge sheet that the National Flag was dealt ' i With disrespect in any of the manners detailed in Section 2 of the Act of 1971 or under Section 3 punishable under Section 5 of the Act of 1950. lt is settled law that power? under Section 482 of the Cr P C or under Article 226/227 of the Constitution of India for quashing first information report and the prosecution of the accused persons can be exerCIsed by ~ the High Court where allegation in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute offence alleged, ajsheld in the matters of R.P. Kapur Vs. State , of Pu’njab‘{AIR 1960 SC 86$}, State of Haryana Vs. Bhajan Lal {1992 ‘ Supp (1) SCC 335} and Zandu Pharmaceutical Works Ltd. and others ., Vs. Mohd. Sharaful Haque and another {(2005) 1 Supreme Court Cases ' 122}. .21'. 1950, the same must be given strict construction and the honour of lndian , 22.Having regard to the purpose and object of the Act of 1971 and the Act of j: National Flag should be pij‘otected by the Courts jealously. However, registration of a crime oh the allegations which lacks necessary “ingredients of the offence alleged should be discouraged A private ' ' Citizen cannot be made to face prosecution under Section 2 of the Act of 1971 only on the allegation that he did not lower down National Flag after sunset without any further allegation that he displayed any disrespect to ' ’ the National Flag as mentioned in the Act of 1971 or the Act of 1950. {3' l l y, K 23.Keeping in view that only allegation against the petitioners is that they did not lower National Flag, which was hoisted in their premises at flag post after sunset and the penal provisions contained in the Act of 1’971 or the Act of 1950, l am of the opinion that no commission of offence is disclosed ll from the allegations present in the First information Report (Annexure—P/1) x and learned CJM was not justified in not accepting the final Khatma report t j submitted by the Police under Section 169 of the Cr.P.C. vide order dated l 4-3-2008(Annexure-P/2). i 24.ln the result, the writ petition: is allowed. First information report registered at Police Station Tamnar, District Raigarh under Crime No.152/06 and