Madhya Pradesh High Court: S.A. Dharmadhikari, J., allowed a petition which was filed invoking inherent powers of this Court under Section 482 of the CrPC seeking quashment of FIR registered alleging offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971 (1971 Act).

A complaint was lodged by Sweety Rajawat, Sub Inspector that she found that in the compound of Balaji ITI College, Gurudwara Road, Sabalgarh, the national flag continued to remain hoisted till 8.30 PM and, as such, intentional insult to National Flag was being caused. Counsel for the petitioners submitted that even if the allegations contained in the FIR are treated to be true, then too they do not constitute any offence as alleged.

The Court perused Section 2 of 1971 Act and derived that it attracts punishment of imprisonment for a term of three years or with fine or both when a person is found in public place within public view burning mutilating, defacing, defiling, disfiguring, destroying, trampling upon or bringing or otherwise bringing into contempt by words spoken or written or by act begin the Indian National Flag. It was further noted that allegation against petitioners is of leaving National Flag at hoisted position at about 8.30 PM i.e. between sunset and sunrise and that act of petitioners does not squarely fall within Section  2 of 1971 Act. Thus, the act of leaving the National Flag in hoisted position even after sunset may be an act of advertent or inadvertent forgetfulness and subject matter of misconduct but not contemptuous unless it is shown that hoisting and flying the National Flag between sunset and sunrise is expressly prescribed as an offence in specific terms.

The fundamental rule of interpretation of penal provision requires that every penal provision is to be interpreted strictly. If an act does not fall within the four corners of the offence described by the statute, then the said act cannot suffer rigors of penal provision.

Reliance was placed on the Supreme Court judgment in R. Kalyani v. Janak C. Mehta, (2009) 1 SCC 516 and it was evident that the act of leaving the National Flag at hoisted position between sunset and sunrise does not satisfy the ingredients which constitute the offence punishable under Section 2 of 1971 Act.

Counsel for respondents submitted that Clause of Section 2 (2.2)(xi) of the Indian Flag Code, 2002 states that allowing National Flag to remain hoisted between sunset and sunrise was prohibited.

The Court perused the abovementioned section and was of the view that the said Flag Code is not “law” as defined in Article 13 of Constitution of India and is a mere compendium of executive instructions as held by the Supreme Court in Union of India v. Naveen Jindal, (2004) 2 SCC 510.

The Court finally held that since the Flag Code does not have any statutory force it cannot attract any offence. The Court allowed the petition and quashed all the consequential proceedings explaining that, the Flag Code laid down that as far as possible National Flag should be flown between sunrise and sunset which meant that it should not be flown between sunset and sunrise. Use of expression “as far as possible” in the said clause of Flag Code, which was a mere instruction, was sufficient for this Court to conclude that flying of National Flag between sunset and sunrise was not prohibited by law.[Gaurishankar Garg v. State of M.P., M.Cr.C. No.18186 of 2021, decided on 24-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Court:

For the petitioners: Mr Vivek Khedkar

For the respondent/State: Mr Manish Nayak

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