Case Note & Summary
The applicant, Umesh Chopde, was the Headmaster of a school in Akot, Maharashtra. A police constable (non-applicant No.2) allegedly found the national flag hoisted on the school flag post at midnight, contrary to Clause 2.1(xi) of the Flag Code which states that the flag should, as far as possible, be flown from sunrise to sunset. The constable lowered the flag, called a photographer, and lodged a First Information Report (FIR) against the applicant under Section 2 of the Prevention of Insult to National Honours Act, 1971. The applicant filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the FIR, arguing that he was falsely implicated and that even if the flag was found hoisted at midnight, it did not amount to an offence under the Act. The State and the complainant opposed the application, contending that violation of the Flag Code is punishable under Section 2 of the Act. The Bombay High Court, Nagpur Bench, heard the matter and framed the sole legal issue: whether non-compliance of Clause 2.1(xi) of the Flag Code necessarily amounts to an offence under the Prevention of Insult to National Honours Act, 1971. The Court examined the language of Section 2 of the Act, which penalizes whoever 'in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof.' The Court held that the Flag Code is directory and not mandatory, and its violation does not automatically constitute an offence under the Act. The Act requires an intentional act of insult or indignity to the national flag. Flying the flag beyond sunset, without any intention to insult, does not fall within the ambit of Section 2. The Court further noted that the applicant had no intention to insult the flag, and the mere fact that the flag was hoisted at midnight did not amount to an offence. Consequently, the Court allowed the application and quashed the FIR.
Headnote
A) Criminal Law - Prevention of Insult to National Honours Act, 1971 - Section 2 - Flag Code - Clause 2.1(xi) - Non-compliance of Flag Code does not automatically constitute an offence under the Act - The Act requires intentional insult or indignity to the national flag; mere violation of directory provisions of Flag Code, such as flying flag beyond sunset, without any intention to insult, is not punishable - Held that the Flag Code is directory and not mandatory, and its violation does not per se attract penal consequences under the Act (Paras 3-7).
Issue of Consideration
Whether non-compliance of Clause 2.1(xi) of the Flag Code necessarily amounts to an offence punishable under the Prevention of Insult to National Honours Act, 1971.
Final Decision
The Court allowed the application and quashed the First Information Report. The Court held that non-compliance of Clause 2.1(xi) of the Flag Code does not necessarily amount to an offence under the Prevention of Insult to National Honours Act, 1971, as the Flag Code is directory and not mandatory, and the Act requires intentional insult or indignity to the national flag.
Law Points
- Flag Code is directory
- not mandatory
- violation of Flag Code does not automatically amount to an offence under Prevention of Insult to National Honours Act
- 1971
- Section 2 of the Act requires intentional insult or indignity to national flag
- flying flag beyond sunset without intent to insult is not an offence.
