PRADHANJI TAKHAJI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate Writ, direction and/or order directing respondent No.2 Home Secretary, State of Gujarat to register complaint against respondent Nos. 3 to 7. It is also further prayed to direct the District Superintendent of Police to personally investigate the matter and file necessary charge-sheet for the contravention of the provisions of the Prevention of Insults to National Honour Act and the Flag Code of India.

(2.) It is the case on behalf of the petitioner that he was Sarpanch of Village Randala and also Taluka Delegate of the Congress (I) Party and he also contested the Taluka Panchayat Election. It is the case on behalf of the petitioner in the petition that he was intimated by the Talati of Village Randala that the flag hoisting ceremony on the Independence Day is to be organized in the Office of Mamlatdar, Visnagar at 9.00 a.m. on 15.08.2007 and all were invited to remain present in the said programme. According to the petitioner he reached the place at 8.30 a.m. for participating in the flag hoisting ceremony at 9.00 a.m. However, Mamlatdar and Assistant Collector did not turn up at 9.00 a.m. at the place and all the people to come there were viz. Members of Taluka Panchayat, Sarpanchas of various villages, leading community leaders of Visnagar Town and Taluka, School Teachers, students, merchants etc. It is the case on behalf of the petitioner that as neither Mamlatdar nor the Assistant Collector remained present at 9.00 a.m. for the Flag Hoisting Ceremony, the people who were gathered at the said programme, decided to perform the flag hoisting ceremony and accordingly all the people present at the occasion performed flag hoisting ceremony at 9.15 a.m. and gave salute to the national flag and also sang the national anthem. It is the case on behalf of the petitioner that about 12.00 O'clock the Mamlatdar came to Mamlatdar Office with the Assistant Collector and local Member of Legislative Assembly (M.L.A.) who are the respondents herein and directed the Police Officer to take out the flag which is not permissible. Not only that his subordinate Officer while taking out the flag has allowed the flag to touch on the ground, in this way they have committed the offences punishable under the provisions of Prevention of Insults to National Honour Act, 1971 and Flag Code of India. It is the case on behalf of the petitioner that the Mamlatdar and Assistant Collector who are Government Officers were supposed to know the Flag Code of India and being Government Officers they are well aware that once the flag has been hoisted, it cannot be lowered down until sunset. However, both the Officers to satisfy the ego of local M.L.A. Of Visnagar acted in contravention of the provisions of the Flag Code of India, 2002 and the Prevention of Insults to National Honour Act, 1971 and Amendment of 2003. It is the case on behalf of the petitioner that as the act of the Mamlatdar and Assistant Collector is against the provisions of law, to overcome from the situation, the Mamlatdar and Assistant Collector filed complaint at Visnagar Police Station alleging against the persons who had hoisted the flag. It is the case on behalf of the petitioner that on coming to know about the insult to national flag and that any citizen can file the complaint, the petitioner who was present filed the complaint with the Visnagar Police Station on 17.08.2007. However, the Police Officer, Visnagar Police Station did not accept the complaint. Therefore, the petitioner had send the complaint by Regd. Post AD to the Police Inspector, Visnagar and concerned D.S.P. However, the Police Officer is not registering the complaint and no steps are taken to register the complaint as FIR against the Mamlatdar and Assistant Collector and others, therefore, the petitioner has preferred the present petition for the aforesaid reliefs.

(3.) Mr.B.T.Rao, learned Advocate appearing on behalf of the petitioner has vehemently submitted that once Mamlatdar had invited for flag hoisting ceremony at 9.00 a.m. On the independence day, the Mamlatdar cannot change the time once it is declared because it is question of nation pride and national importance and if it was not convenient to him he should have asked Dy. Mamalatdar or next Officer subordinate to him to complete the flag hoisting ceremony. It is further submitted by him that in the entire Flag Code of India though there is no specific time to flag hoisting but as per the national policy flag hoisting ceremony is to be completed by 9.00 a.m. and thus the Mamlatdar has not discharged his statutory function of flag hoisting. It is further submitted by him that Assistant Collector who is an I.A.S. Officer is also equally negligent and acted with negligence by not remaining present at 9.00 a.m. in the flag hoisting ceremony. Mr.Rao, learned Advocate appearing on behalf of the petitioner has further submitted that neither the Mamlatdar nor the Assistant Collector remained present at 9.00 a.m. for flag hoisting ceremony and the people who had gathered at the place decided to perform the flag hoisting ceremony and completed the flag hoisting ceremony at 9.15 a.m. and to save the skin, though once flag hoisting ceremony is completed it cannot be lowered down until sunset, both the aforesaid Officers acted in contravention of the Prevention of Insults to National Honour Act, 1971 lowered down the flag and again completed the flag hoisting ceremony. During the same some of his Subordinate Officer while taking out the flag has allowed the flag to touch on the ground. Therefore, it is submitted that when it is insult to the national flag and when Mamlatdar and Assistant Collector who are Government Officers have committed the offence more particularly under the provisions of Prevention of Insults to National Honour Act, 1971 and the Flag Code of India, 2002, the Police Officer of the Visnagar Police Station was duty bound to register the complaint as FIR and ought to have further investigated the case. Therefore, it is requested to allow the present Special Criminal Application by directing the Home Secretary, State of Gujarat to register the complaint against respondent Nos.3 to 7.