The Bombay High Court has pointed out that mens rea, or a guilty intention, is an essential ingredient to constitute an offence under Section 2(4)(l) of the Prevention of Insults to National Honour Act, 1971. Essentially, the act of displaying the Indian National Flag with the ‘saffron’ down must be proven to be intentional to attract criminal liability. The Court therefore ruled that mere presence at a location where the flag is incorrectly displayed is insufficient to establish guilt, and there must be concrete evidence linking the accused to the intentional act of disrespect.
A Single Judge Bench of Justice Ashwin D. Bhobe noted that to constitute an offence under Section 2(4)(l) of the Prevention of Insults to National Honour Act, 1971, the display of the Indian National Flag in an inverted manner must be intentional. The Bench found no material or evidence on record, including the statement of the society’s watchman, to indicate that the Applicant had hoisted the flag, was involved in its display, or that any of his actions were intended to insult or show disrespect to the National Flag.
The Bench explicitly stated that the Applicant’s mere presence at the flag hoisting ceremony would not amount to an offence under the Act. Further, the Bench criticized the Magistrate’s order, which took cognizance of the offence, describing it as a ‘rubber-stamped cognisance’ and ‘non-speaking’. The Bench observed that taking cognizance is a judicial act requiring the application of mind, and the order for issuance of process must contain reasons, even if not detailed, to show that a prima facie case exists.
The Bench found the Magistrate’s order to be illegal and unsustainable as it failed to disclose any consideration of the material on record. Accordingly, the Bench quashed the FIR and concluded that the continuation of proceedings would be an abuse of the process of law, justifying the exercise of its powers under Section 528 of the BNSS.
Briefly, an FIR was registered by the Tilak Nagar Police Station against the Applicant and five other individuals, who were members of the ‘Shri Rajani Society’, under Section 2(4)(l) of the Prevention of Insults to National Honour Act, 1971. The incident occurred on Republic Day, when a flag-hoisting ceremony was conducted at the society building at approximately 9:15 a.m. Later that day, at around 4:00 p.m., police officers visited the society and reported that the flag hoisted on the terrace was inverted.
Following an investigation, a charge sheet was filed and a case was registered before the Judicial Magistrate First Class. The Applicant, an 85-year-old retired individual, filed the application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking the quashing of the FIR and the subsequent charge sheet.
Appearances:
Advocate Rajendra Sorankar, for the Applicant
APP Pallavi Dabholkar, for the State
