Allowed

P.K Satheesh Babu v. State of Kerala

Kerala HC15 Mar 2016Crl.MC/1208/2016

Case brief

AI extract

What is this about?

The Kerala High Court quashed a criminal petition against an accused for not lowering the National Flag after sunset, relying on precedents that the Flag Code is not statutorily enforceable and such acts do not constitute an offence under the Prevention of Insult to National Honour Act.

What did the court decide?

Criminal Miscellaneous Case allowed; First Information Report and all further proceedings against the petitioner in Crime No.36/2016 of Nadapuram Police Station quashed.

P.K Satheesh Babu Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937

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Crl.MC.No. 1208 of 2016 ()

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CRIME NO. 36/2016 OF NADAPURAM POLICE STATION, KOZHIKODE.

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PETITIONER/ACCUSED:

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P.K SATHEESH BABU, S/O.RAMAKRISHNAN, "SNEEHATHEERAM", P.O.CHOCKL, THALASSERY, KANOOR DISTRICT. (SECRETARY, THOOMERY GRAMA PANCHAYATH, NADAPURAM, KOZHIKODE DISTRICT.

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BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (IN THE MATTER OF CRIME NO.36/2016 OF NADAPURAM POLICE STATION) ERNAKULAM-31.

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BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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Crl.MC.No. 1208 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE-1: TRUE COPY OF THE OFFICE ORDER RECORDED IN PAGE NO.45 AND 46 OF THE OFFICE ORDER BOOK OF THE THOOMERY GRAMA PANCHAYATH.

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ANNEUXRE-2: TRUE COPY OF THE F.I.R. TO CRIME NO.36/2016 OF NADAPURAM POLICE STATION.

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ANNEXURE-3: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED TO E.HARIDASAN, DRIVER.

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ANNEXURE-4: TRUE COPY OF THE EXPLANATION GIVEN BY HARIDASAN.

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RESPONDENT(S)' ANNEXURES:

NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

[CR]

B. KEMAL PASHA, J.

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Crl.M.C. No.1208 of 2016

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Dated this the 15^th day of March, 2016

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Petitioner is the accused in Crime No.36/2016 of

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Nadapuram Police Station registered for the offence under Section 2 of the Prevention of Insult to National Honour Act, 1971. The allegation against the petitioner is that he has

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not cared to lower the National Flag hoisted in front of the Panchayat Office, Thooneri, even after sunset.

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The learned counsel for the petitioner has pointed

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out that instances of disrespect to the Indian National Flag

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are clearly specified in Explanation 4 of Section 2 of the

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Crl.M.C.1208/2016

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: 2 :

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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 Section 2 of the said Act.

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3 . 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. Union of India and others [2012 (4) Bom. C.R.(Cri) 219], wherein it was held that:-

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“Explanation 4 gives various instances of disrespect to the Indian National Flag. The offence of not lowering down the flag after sunset does not fall either in the various instances which are mentioned in Explanation 4 or in Section 2 of the said Act. The averments in the complaint, therefore, even if they are accepted at its face value, does not constitute an offence within the meaning of Section 2 of the said Act.”

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Crl.M.C.1208/2016

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: 3 :

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Their Lordships had relied on the decision of the Apex Court in Union of India v. Navin Jindal & 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.

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Going by the decisions noted supra , it seems that

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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

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Crl.M.C.1208/2016

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: 4 :

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unnecessary and, therefore, the same can be quashed.

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In the result, this Crl.M.C. is allowed and Annexure-2

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First Information Report in Crime No.36/2016 of Nadapuram Police Station and all further proceedings as against the petitioner in it are quashed.

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Sd/- (B.KEMAL PASHA, JUDGE)