Inverted Display Of National Flag Not An Offence If There Was No Intention To Insult: Bombay High Court

The Court held that mere presence at a flag-hoisting ceremony, without any material showing intentional insult or disrespect, would not constitute an offence under the provision.

The Court was hearing an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing of an FIR and consequential charge sheet registered for alleged inverted hoisting of the National Flag during a Republic Day function at a residential society.

A Bench of Justice Ashwin D. Bhobe observed that “To constitute the offence under Section 2(4) (l), the display of the Indian National Flag in an inverted manner must be intentional. Thus, mens rea to cause insult or disrespect, or to bring the Indian National Flag into contempt, would be required.”

Background

The FIR was registered after police officers allegedly found that the National Flag hoisted earlier in the day was displayed in an inverted manner. The prosecution's case was that members of a residential society had gathered for a flag-hoisting ceremony, and later in the day, the flag was found inverted. The applicant, who was one of the members present at the ceremony, was named in the FIR along with others.

Following the investigation, a charge sheet was filed, and the Magistrate took cognisance of the offence under Section 2(4)(l) of the 1971 Act.

Court’s Observation

The High Court examined Section 2 of the Prevention of Insults to National Honour Act, 1971, particularly clause (l) of Explanation 4, which criminalises “intentionally displaying the Indian National Flag with the ‘saffron’ down.”

The Court noted that the statutory language clearly requires intentional display in the prohibited manner. It held that the prosecution material did not indicate that the applicant had hoisted the flag, displayed it, or acted at whose instance it was displayed.

The Court observed that the statement of the watchman merely referred to the presence of society members at the time of hoisting and did not attribute any act of display or intentional conduct to the applicant. There was no material to show that the applicant had any role in the alleged inverted display or that he intended to insult or show disrespect to the National Flag.

The Court further held that even if the allegations in the FIR were accepted at face value, the applicant’s mere presence at the ceremony would not satisfy the ingredients of Section 2(4)(l). The offence requires both actus reus and mens rea, an intentional act of displaying the flag with saffron downwards coupled with the requisite intention to insult or bring it into contempt.

The Court also examined the order by which the Magistrate had taken cognisance and issued process. It found that the order was a non-speaking one, stating merely that cognisance was taken and process issued. The Court observed that taking cognisance is a judicial act requiring application of mind and formation of an opinion that sufficient ground exists for proceeding. Absence of reasons rendered the order unsustainable.

Relying upon the principles laid down by the Supreme Court regarding the issuance of process and the need for application of mind, the Court held that the cognisance order was illegal.

The Court further held that the case fell within the parameters laid down in State of Haryana v. Bhajan Lal for the exercise of inherent powers to prevent abuse of the process of law.

Conclusion

Holding that the essential ingredients of Section 2(4)(l) were not made out against the applicant and that the order taking cognisance suffered from a lack of judicial application of mind, the Court quashed the FIR, charge sheet, and all consequential proceedings against the applicant.

The criminal application was accordingly allowed, with no order as to costs.

Cause Title: V. K. Narayanan v. State of Maharashtra

Appearances

Applicant: Rajendra Sonwal, Advocate

Respondents: Pallavi Dabholkar, APP

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