Act Of Leaving National Flag In Hoisted Position After Sunset Maybe A Misconduct But Not An Offence: MP High Court

The Bench of Justice S. A. Dharmadhikari also ruled that the flying of the National Flag between sunset and sunrise is not prohibited by law in view of the Flag code being a mere set of instructions without the force of Law.

The facts in brief

The Court was hearing a 482 CrPC application seeking quashment of an FIR registered against the petitioners alleging offence punishable under section 2 of the Prevention of Insults to National Honour Act, 1971.

On 16 August 2017, it was found that the national flag continued to remain hoisted till 8.30 PM in the compound of Balaji ITI College, Sabhalgarh and, as such, the petitioners were held responsible for intentional insult to National Flag and an FIR was registered against him.

Before the Court, the counsel for the petitioners submitted that even if the allegations contained in the FIR are treated to be true, then too they do not constitute any offence as the alleged act of leaving National Flag at a hoisted position at about 8.30 PM i.e. between sunset and sunrise does not squarely fall within Sec.2 of 1971 Act.

On the other hand, the respondents argued that Sec.2 of 1971 Act had to be read in conjunction with the said Clause of Sec.2(2.2)(xi) of Flag Code, and therefore, it was obvious that the petitioners had committed the offence punishable u/S.2 of 1971 Act

Court's observations

Referring to Section 2 of the 1971 Act, the Court observed that the provision is attracted when a person is found in public place within public view burning mutilating, defacing, defiling, disfiguring, destroying, trampling upon or bringing or otherwise bringing into contempt by words spoken or written or by act begin the Indian National Flag.

Against this backdrop, the Court observed that the act of petitioners do not squarely fall within Sec.2 of 1971 Act and therefore, the Court ruled thus:

"… the act of leaving the National Flag in hoisted position even after sunset may be an act of advertent or inadvertent forgetfulness and subject matter of misconduct but not contemptuous unless it is shown that hoisting and flying the National Flag between sunset and sunrise is expressly prescribed as an offence in specific terms."

Regarding the Flag Code, the Court opined that the same is not "law" as defined in Article 13 of the Constitution of India and is a mere compendium of executive instructions and therefore, it does not have any statutory force and the same cannot attract any offence.

It may be noted that Clause 2(2.2)(xi) of the Flag Code read thus:

"Where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions."

Against this backdrop, the Court observed that the Flag Code only lays down that as far as possible National Flag should be flown between sunrise and sunset, meaning thereby that it should not be flown between sunset and sunrise.

"Use of expression 'as far as possible' in the said clause of Flag Code, which is a mere instruction, is sufficient for this Court to conclude that flying of National Flag between sunset and sunrise is not prohibited by law," concluded the Court while quashing the FIR against the petitioners.

Case title - Gaurishankar Garg & another Vs. The State of M.P.

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