Non-Intentional Mistake: Kerala High Court Quashes Criminal Case Against Man Accused Of Holding Indian National Flag With Saffron Down
The petition before the Kerala High Court was filed by the accused seeking quashing of all proceedings in a case registered under the Prevention of Insults to National Honour Act.
Justice A. Badharudeen, Kerala High Court
While quashing the proceedings against a man who committed a mistake by displaying the Indian National Flag with the saffron colour down, the Kerala High Court has clarified that unintentional, accidental or mistaken acts without any intention or mens rea to insult the Indian National Flag and the Constitution of India would not attract the offence under Section 2 of the Prevention of Insults to National Honour Act, 1971.
The petition before the High Court was filed by the sole accused under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), seeking quashing of all proceedings in a case registered under Section 2 of the Prevention of Insults to National Honour Act, 1971.
The Single Bench of Justice A. Badharudeen held, “Thus, it is held that intentionally displaying the Indian National Flag with the saffron colour down with a view to insult the Indian National Flag and the Constitution of India is an offence punishable under Section 2 of the Act, 1971. At the same time, nonintentional, accidental or mistaken acts of doing the same, without any intention or mens rea to insult the Indian National Flag and the Constitution of India, would not attract the offence.”
Advocate Ajit G Anjarlekar represented the Petitioner while Standing Counsel R.V. Sreejith represented the Respondent.
Factual Background
An FIR was registered by the Inspector of Police, Kavarathi Police Station, suo motu, upon receiving information through his WhatsApp group under the caption M.G.College, sent by one Ameen along with a picture showing the accused holding the Indian National Flag with the saffron colour facing downward, on satisfying that the accused had committed an offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971. Thereafter, the investigation was conducted, and the statements of witnesses were recorded. They stated that they had also seen the photograph of the accused holding the Indian National Flag with the saffron colour facing downward. Thereafter, the final report was filed alleging commission of the said offence.
Reasoning
The Bench, at the outset, made it clear that even a private WhatsApp group involving many persons/members would qualify as a place within public view for the purpose of the Act, 1971. The Bench further noticed that the statements of the witnesses indicated that they felt insulted when they had seen the photograph of the accused along with the Indian National Flag showing the saffron colour down.
The Bench found that the accused displayed the photograph of the Indian National Flag as part of “Har Ghar Tiranga” programme, which was intended to honour the Indian National Flag.
The Bench further found that the accused never intended to display the Indian National Flag with the saffron colour down and it was a mistake on his part while displaying the same. “In such view of the matter, the allegation that the accused committed offence punishable under Section 2 of the Act, 1971, could not be found, prima facie, and, in such a case, the prosecution as against the petitioner on the said premise is liable to be quashed by exercising the power of this Court under Section 482 of the Cr.P.C”, it held.
The Bench thus allowed the Petition.
Cause Title: Mohammed Kasim H.K. v. Union Territory of Lakshadweep (Neutral Citation: 2026:KER:74369)
Appearance
Petitioner: Advocates Ajit G Anjarlekar, G.P. Shinod, Govind Padmanaabhan, Atul Mathews, Gayathri S.B.
Respondent: Standing Counsel R.V. Sreejith