The Madras High Court has held that cutting of a cake that is iced like the National Flag will not amount to an 'insult' to attract the offence under Section 2 of the Prevention of Insults to National Honour Act, 1971.
A Single Bench of Justice N. Anand Venkatesh in a judgment delivered today observed that patriotism is not determined by a physical act and that the intention behind the act is the true test in such cases.
"There is no doubt that nationalism in a democracy like India is very vital. But, hyper and surfeit adherence to it goes against the prosperity of our nation from all its past glory.
A patriot is not one who only raises the Flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance. The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic."
The Court also cited the following words of Rabindranath Tagore,
"Patriotism cannot be our final spiritual shelter; my refuge is humanity. I will not buy glass for the price of diamonds, and I will never allow patriotism to triumph over humanity as long as I live."
The instant proceedings were instituted at the behest of the Tamil Nadu Government, seeking quashing of the criminal proceedings before the Magistrate, on a complaint filed by the a private party, D Senthilkumar.
Senthilkumar had, on coming to know about a public function conducted at Coimbatore on Christmas day in 2013 in which a cake with the icing of a tri-colour Indian map outline with the Ashoka Chakra in the centre, was cut and consumed, made a criminal complaint to the Magistrate.
The event was also attended by the District Collector of Coimbatore, the Deputy Commissioner of Police, and various other religious leaders and members from NGOs.
He felt aggrieved by the manner in which the Indian National Flag was portrayed in the function and submitted that the participants had deliberately disrespected the National Flag by cutting it in the form of a cake, amounting to an offence under Section 2 of the Prevention of Insults to National Honour Act.
Section 2 of the Act states: Whoever in any public place burns, mutilates, defaces, difiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt whether by words, either spoken or written, or by acts the Indian National Flag or the Constitution of India, shall be punished with imprisonment for a term up to 3 years or with fine or both.
Explanation 2 thereof provides: —The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance.
The Respondent submitted that the cake in the form of the Indian map in tricolour would come within the phrase "made of any substance or represented on any substance" under the Explanation 2.
Proceedings before Magistrate
The Respondent had filed a petition before the Magistrate under Section 156(3) of CrPC seeking a direction to the police to register an FIR in the matter.
The Magistrate decided to deal with the petition as a complaint under Chapter XV of CrPC and he took cognizance of the matter under Section 190(1)(a), CrPC. Thereafter, the Magistrate proceeded to examine the complainant and two witnesses on oath as per Section 200, CrPC.
Thereafter, the Magistrate exercised jurisdiction under Section 156(3) CrPC and passed an order directing the police to register an FIR against the concerned persons for an offence under Section 2 of the Act, to inquire the same and to file a Final Report.
At the outset, the Single Bench opined that the procedure adopted by the Magistrate in the instant case is erroneous. It held that after taking cognizance of the matter and resorting to complaint procedure, the Magistrate ought to have proceeded further and either rejected the complaint under Section 203 CrPC or issued process to the accused persons under Section 204 CrPC.
"The procedure followed by the learned Magistrate is patently illegal. Power to direct investigation under Section 156(3), Cr.P.C. is done at the pre-cognisance stage. Therefore, once the Magistrate decides to take cognisance and embarks upon the procedure stipulated under Chapter XV, Cr.P.C., he cannot revert back to the pre-cognisance stage and pass orders under Section 156(3), Cr.P.C."
The Bench explained that if an order is passed under Section 156(3) CrPC and if it translates itself into an FIR, the investigation will ultimately result in a Final Report under Section 173(2), CrPC.
Once such a report is filed, the Magistrate has to take cognisance of the same under Section 190(1)(b), CrPC.
However, if that is allowed in the present case, the Magistrate will be taking cognisance of the same case for the second time.
"The first time the cognisance has already been taken under Section 190(1)(a), Cr.P.C. and the second time, the Magistrate will be taking cognisance after the Final Report under Section 190(1)(b), Cr.P.C. This will result in a complete violation of the procedure adumbrated under the Cr.P.C."
Coming to the question whether cutting of cake having icing like the national flag amounts to an offence, the Bench opined,
"even if the entire set of facts stated in the complaint are taken as it is, it must be seen as to what would have been the actual feeling with which the participants would have dispersed after the function was over.
Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration? Without any hesitation, this Court can hold that the participants would have felt only the former and not the latter."
In this context, the Bench illustrated as follows:
There is widespread participation in an Independence Day or Republic Day celebration. During such celebrations, the participants are provided with a national flag to be worn by them. In reality, after the participants leave the venue on completion of the celebrations, they do not continue to possess this Flag forever, and it becomes part of any other waste paper. Will this mean that each of the participants has insulted the national Flag and should be proceeded against under Section 2 of the Act? The obvious answer is in the negative.
The Bench thus held,
"For any act to be termed as an offence under Section 2, Actus Reus and Mens Rea should be established. The Actus Reus being any of the actions in Section 2 and Explanation 4 and the Mens Rea being the intention to show disrespect or contempt."
Reliance was placed on a decision of the Kerala High Court in PV Joseph, v. State of Kerala, 2016 SCC OnLine Ker 11466, where it was held that a prosecution would be unnecessary in a case where there was no intention on the mind of the accused person to dishonour the National Flag.
Even otherwise, the Bench observed, the complainant did not have personal knowledge about the event in question. It noted that the only source of information for the complainant was a newspaper report. "It is, therefore, clear that the complaint did not emanate from a person who had witnessed the incident," the Court said while allowing the State's application for quashing of criminal proceedings.
Case Title: State v. D. Senthilkumar