SATHEESH BABU P.K. Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the accused in Crime No. 36/2016 of Nadapuram Police Station registered for the offence under Sec. 2 of the Prevention of Insult to National Honour Act, 1971. The allegation against the petitioner is that he has not cared to lower the National Flag hoisted in front of the Panchayat Office, Thooneri, even after sunset. The learned counsel for the petitioner has pointed out that instances of disrespect to the Indian National Flag are clearly specified in Explanation 4 of Sec. 2 of the Prevention of Insult to National Honour Act, 1971, and that an act of not lowering down the flag after sunset does not fall in the various instances which are mentioned in Explanation 4 of Sec. 2 of the said Act.

(2.) The learned counsel for the petitioner has invited the attention of this Court to the decision rendered by the Division Bench of the Bombay High Court in Amgonda Vithoba Pandhare v/s. Union of India and Others : 2012 (4) Bom. CR(Cri)219, wherein it was held that:

(3.) Their Lordships had relied on the decision of the Apex Court in Union of India v/s. Navin Jindal and Another rendered in Civil Appeal No. 453 of 2004, wherein it was held that the Flag Code contains executive instructions of the Central Government and, therefore, it is not a law within the meaning of Article 13(3)(a) of the Constitution of India. It is a model code of conduct to be followed compulsorily by all the citizens of India. Apart from that, penal consequences cannot be invited unless there is a statutory provision for the same. Going by the decisions noted supra, it seems that the prosecution in this case is quite unnecessary. Apart from that, it seems that there was no intention on the part of the petitioner to dishonour the National Flag. True that it was an omission on his part in lowering the National Flag at or before sunset. The prosecution seems to be quite unnecessary and, therefore, the same can be quashed.