Waving Black Flag To A Person Neither Defamation Nor An Illegal Act: Kerala High Court Quashes Case For Protesting Chief Minister's Convoy

In the facts of the case, the petitioners were accused of waving a black flag at the convoy of the Chief Minister on April 09, 2017, and using force against police personnel. They were alleged to have committed offences punishable under sections 283 (danger or obstruction in a public way), 188 (disobedience to order of public servant), 500 (punishment for defamation) and 353 (assault) read with section 34 (common intention) of the IPC.

Justice Bechu Kurian Thomas observed that waving a black flag could be a sign of support or protest and that it depends on perception. Court said,

“Though signs and visible representations can be a mode of defaming a person, still, showing or waving a black flag to a person cannot amount to defamation nor is it an illegal act. Even if a black flag was shown to the Chief Minister's convoy, such conduct cannot by any stretch of the language of section 499 IPC be perceived as defamatory. In this context, this Court bears in mind that a black flag can depict different things depending on the context. Waving a flag can be a sign of support or a sign of protest. It is a matter of perception. Generally, a black flag is shown as a mark of protest. If a flag of a particular colour is shown, whatever the reason, including as a mark of protest, as long as there is no law which prohibits the waving of a flag simpliciter, such conduct cannot be mulcted with the offence of defamation.”

The Counsel for petitioners contended that an offence of defamation cannot be initiated on a police report. It was also stated that there was no obstruction caused to any public way and no offence under Section 283 of IPC was attracted. It was stated that petitioners did not use force against police officers, no injury was caused to them and they were not deterred from their duties, therefore Section 353 of IPC was also not attracted.

On the other hand, the Public Prosecutor submitted that witness statements indicate that police officers were being pushed and their uniforms were pulled while they were trying to prevent obstruction to the convoy of the Chief Minister.

The Court found that cognizance for offence of disobedience to an order promulgated by a public servant under Section 188 of IPC could only be taken if the complaint is filed in writing by the public servant who issued the order or by a subordinate to such public servant. In the facts of the case, the Court stated that an offence under Section 188 cannot be attracted.

The Court further stated that there was no evidence to show that petitioners caused any obstruction, even temporarily to attract an offence under Section 283 of the IPC.

Further, the Court stated that minimal push and pull was natural while preventing a person from causing obstruction. The Court stated that there are no allegations indicating that police personnel were deterred from discharging their duties or that they were injured to attract the offence of assault under Section 353 of the IPC. Referring to Section 95 of the IPC, which reflects the principle of de minimis non curat lex—meaning 'the law does not concern itself with trifles', the Court stated that prosecution for slight or negligible harms can be avoided.

The court stated, “The intention behind section 95 IPC is to avoid penalising negligible wrongs or trivial offences. If prosecution is initiated for every triviality, we will have time only for those. Section 95 comes to the aid in such instances. Considering the circumstances that none of the other offences are attracted and only section 353 IPC remains, this Court is of the view that having regard to the nature of allegations and in the absence of any assault or injury on the police officers and since the duty of the police officers was not deterred, section 95 IPC can be applied to quash the offence under section 353 IPC.”

The Court thus found that no offences as alleged in the final report are attracted against the petitioners.

Accordingly, the Court quashed the final report against the petitioners.

Counsel for Petitioners: Advocates M Vivek, Reneeta Vinu

Counsel for Respondents: Public Prosecutor C N Prabhakaran

Case Number: CRL.MC NO. 7951 OF 2024

Case Title: Simil v State of Kerala

Citation: 2024 LiveLaw (Ker) 735

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