IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Bail Appl..No. 6697 of 2008() ----------------------------- CRIME NO.827/08 OF KODUNGALLUR POLICE STATION PETITIONER: ACCUSED NO.1 -------------------------------- SAJEEV, AGED 44 YEARS, S/O. RAMAKRISHNAN, VALLOMPARAMBATH, PANIKKASSERY, PULLOOT.P.O , PULLOOT VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, MANAGING PARTNER, LAKSHMI JEWELLERY, KODUNGALLUR. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE S.I OF POLICE, KODUNGALLUR. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/11/2008, ALONG WITH BA NO. 6710 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 6697 of 2008 & B.A.No.6710 of 2008 ----------------------------------------- Dated this the 25th November, 2008 O R D E R These petitions are for anticipatory bail. 2. The alleged offences are under Section 2 of the Prevention of Insults to National Honour Act, 1971 read with Section 2(b) and 2(e) of the Prevention of Insults to National Honour (Amendment) Act, 2003 and Section 509 of the Indian Penal Code. Petitioner in B.A.No.6697 of 2008 is first accused and petitioners in B.A.No.6710 of 2008 are accused 3 and 4 in the same crime. 3. First accused is an owner of a jewelery and fourth accused is a designer and third accused is proprietor of an advertising agency. According to prosecution, in an advertisement of one jewelery by name 'Lakshmi Jewelery', which appeared in the 'Mathrubhoomi' Malayalam daily dated 15.8.2008, a photograph of a woman was exhibited, in which the woman used the Indian National Flag, as the garment. This, according to prosecution, attracts offences under the above Sections. 4. Learned counsel for petitioners submitted that the offences alleged in this case will not be attracted on the facts of this case. Only three colours are used in the advertisement which may tally BA.6697 & 6710/08 2 with the colours in the Indian National Flag. But, mere using of three colours cannot amount to any offence, it is submitted. Such colours are widely used in printing the boarders of sarees, particularly, Kerala Saree, Khadar shawls etc. Those are seen even in the towels used by even Ministers. But such use is not prohibited by any of the provisions, it is submitted. The mere use of three colours, according to learned counsel for petitioner, cannot amount to use of Indian National Flag. 5. It is also submitted that petitioners had no intention to insult the National Flag. It was used in honour of the National Flag and the advertisement was published on the Independence Day, it is pointed out. It cannot be said that it was done to insult the Indian National Flat in any manner and hence, anticipatory bail may be granted, failing which petitioners will suffer irreparable injury and loss, it is submitted. 6. 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 BA.6697 & 6710/08 3 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. 7. Learned counsel for petitioners submitted that 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. BA.6697 & 6710/08 4 8. 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: Petitioners shall surrender before the investigating officer within seven days from today and in the event of their arrest, they shall be released on bail on their executing bond for Rs.25,000/- each with two solvent sureties each for the like sum to the satisfaction of the arresting officer, on the following conditions: i) Petitioners 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 vgs.