“Intentional” Inverted-Flag Display Requires Proof of Mens Rea; Non-Speaking (“Rubber-Stamped”) Cognizance Orders Are Vulnerable to Quashing Under Section 528 BNSS

Case: V K NARAYANAN v. STATE OF MAHARASHTRA

Court: Bombay High Court (Criminal Appellate Jurisdiction)

Date: 23-02-2026

Coram: Ashwin D. Bhobe, J.

Provision Invoked: Section 528, Bharatiya Nagarik Suraksha Sanhita, 2023 (quashing)

Alleged Offence: Section 2(4)(l), Prevention of Insults to National Honour Act, 1971 (intentionally displaying the National Flag with “saffron” down)

1) Introduction

The Applicant, a senior citizen and resident/member associated with “Shri Rajani Society”, sought quashing of FIR No. 13 of 2017 and the resulting charge-sheet/case (Criminal Case No. 460/PS/2017). The FIR arose out of a Republic Day flag-hoisting ceremony in 2017. After the ceremony (around 9:15 a.m.), society members dispersed, and later (around 4:00 p.m.) police allegedly found the hoisted flag inverted. The prosecution proceeded against the Applicant and others on the footing that the National Flag had been “intentionally” displayed with saffron down.

The key issues before the High Court were:

  • Ingredients of Section 2(4)(l): whether the record disclosed that the Applicant “intentionally” displayed the inverted flag.
  • Sufficiency of material: whether mere presence at the time of hoisting, without evidence of act/intent, can sustain prosecution.
  • Validity of cognizance/process: whether the Magistrate’s order taking cognizance and issuing process was a non-speaking, “rubber-stamped” order liable to be set aside.
  • Quashing standard: whether the matter fell within the quashing principles (abuse of process) warranting exercise of power under Section 528 BNSS.

The judgment also records an unconditional apology placed on record by the Applicant and notes age-related infirmities; however, the quashing turns on absence of statutory ingredients and procedural illegality, not on compassion alone.

2) Summary of the Judgment

The Bombay High Court allowed the application and quashed:

  • FIR No. 13 of 2017 (Tilak Nagar Police Station),
  • the charge-sheet/case (460/PS/2017), and
  • the Magistrate’s order dated 03.07.2017 taking cognizance/issuing process.

The Court held that even accepting the FIR and collected material at face value, the essential requirement of intentional inverted display (mens rea) under Section 2(4)(l) was not made out against the Applicant. It further held that the cognizance/process order was non-speaking and reflected no application of judicial mind, rendering it illegal. The Court invoked the principles of State of Haryana v. Bhajan Lal to prevent abuse of process under Section 528 BNSS.

3) Analysis

A) Precedents Cited

(i) Union of India v. Naveen Jindal & Anr.

The High Court reproduced key extracts on the status of the Flag Code and the constitutional framing of the right to fly the National Flag. The Supreme Court in Union of India v. Naveen Jindal & Anr. clarified that:

  • The Flag Code is executive instruction and is not “law” under Article 13(3)(a) for the purpose of restricting Article 19 rights.
  • Nevertheless, its guidelines “deserve to be followed” to preserve dignity and respect of the Flag.
  • The right to fly the flag is a fundamental right under Article 19(1)(a), but subject to reasonable restrictions; statutory regulation occurs through the 1971 Act (and related legislation).

Influence on the present decision: The High Court used this framework to emphasize that while respect for the Flag is paramount, criminal liability must still satisfy the statutory elements of the 1971 Act—particularly where the offence expressly requires intentional conduct (Section 2(4)(l)).

(ii) Lalankumar Singh & Ors. v. The State of Maharashtra

The High Court relied on this authority to invalidate the Magistrate’s cognizance/process order. In Lalankumar Singh & Ors. v. The State of Maharashtra, the Supreme Court reiterated that issuance of process is not an empty formality and requires application of mind, with reasons (even if brief) recorded in the order.

Influence: This directly supported the High Court’s characterization of the 03.07.2017 order as “rubber-stamped cognisance” and non-speaking, warranting interference.

(iii) Sunil Bharti Mittal v. Central Bureau Of Investigation. of Investigation

Quoted within Lalankumar Singh & Ors. v. The State of Maharashtra, this decision underlines that the words “sufficient ground for proceeding” (Section 204 CrPC, and analogously the cognizance/process stage) require a judicially formed opinion after due application of mind, which must be discernible from the order.

Influence: It strengthened the High Court’s conclusion that a bare “Cognizance taken Issue process” order, without indicating consideration of material, is legally infirm.

(iv) Ashoke Mal Bafna v. Upper India Steel Manufacturing and Engineering Co. Ltd.

Mentioned in Lalankumar Singh & Ors. v. The State of Maharashtra as consistent authority, it supports the broader principle that process issuance must reflect judicial application of mind and is susceptible to being set aside when it does not.

(v) State of Haryana v. Bhajan Lal

The High Court applied the quashing principles of State of Haryana v. Bhajan Lal to hold that the prosecution, on the admitted material, would amount to abuse of process—because the essential ingredients of the alleged offence were not disclosed against the Applicant.

Influence: Bhajan Lal supplied the controlling test for when inherent/quashing jurisdiction should be exercised: where allegations and material do not disclose an offence, or where continuation would be unjustified harassment.

B) Legal Reasoning

(i) Statutory ingredient: “intentionally displaying … with the saffron down”

The charged offence was specifically Section 2(4)(l), which is triggered only when the National Flag is intentionally displayed with saffron down. The High Court treated “intentional” not as surplusage but as the core threshold: the prosecution must show both the act (display/participation in display) and the mental element (intention to display it inverted, importing mens rea in the statutory sense).

(ii) Evidentiary gap: mere presence is not participation, and participation is not intention

The FIR alleged the Applicant’s presence at the time of hoisting. The prosecution leaned on the statement of the watchman, Deepak Jaysingh, but that statement only described the presence of office-bearers, members, and children during hoisting; it did not attribute hoisting, display, instruction, or direction to the Applicant.

The Court therefore held:

  • No material showed the Applicant “displayed” the flag inverted.
  • No material showed an act “intended” to insult/disrespect or bring the Flag into contempt.
  • Even assuming inversion occurred, the record did not establish that inversion was intentional and attributable to the Applicant.

(iii) “Rubber-stamped” cognizance: procedural illegality as an independent quashing ground

The Magistrate’s order of 03.07.2017 read, in substance, “Chargesheet has been filed today… Cognizance taken Issue process…”. The High Court held this was non-speaking and showed no application of mind to available material.

Importantly, the Court treated this as more than a technical lapse: cognizance is a judicial act that safeguards individuals from being “dragged into court” without a legally supportable prima facie basis.

(iv) Section 528 BNSS and abuse-of-process control

Having found (a) absence of statutory ingredients on admitted material and (b) illegal, non-reasoned cognizance, the Court held the case “squarely falls” within State of Haryana v. Bhajan Lal principles and exercised Section 528 BNSS to prevent abuse of process.

C) Impact

(i) Higher evidentiary threshold for Section 2(4)(l) prosecutions

The decision underscores that prosecutions for inverted display of the National Flag must be founded on material showing:

  • who displayed/caused display, and
  • that the inverted display was intentional (not accidental, not attributable to lapse, not merely inferred from presence or office status).

This curbs overbroad attribution of criminality to society members/office-bearers absent specific role and intent.

(ii) Reinforcement of “reasoned process order” discipline

By striking down a bare cognizance order, the judgment operationalizes Supreme Court guidance that Magistrates must record at least brief reasons indicating application of mind. The likely systemic effect is to reduce mechanical process issuance and to strengthen early-stage judicial filtering, especially in socially sensitive offences.

(iii) Practical litigation consequence: stronger quashing prospects where intent is statutory

Where an offence definition contains explicit mens rea (e.g., “intentionally”), this decision supports quashing if the prosecution material, taken at its highest, does not speak to intention attributable to the accused.

4) Complex Concepts Simplified

  • Mens rea: the mental element (intention/knowledge) required to constitute an offence. Here, “intentionally displaying… with saffron down” demands proof of deliberate inverted display, not mere accident or mere presence.
  • Cognizance: the stage when a Magistrate takes judicial notice of an alleged offence and decides to proceed. It is a judicial function requiring application of mind.
  • Issue of process: the act of summoning the accused to court after the Magistrate forms an opinion that there is “sufficient ground for proceeding”. Courts require that this opinion be reflected in a reasoned order.
  • “Rubber-stamped” order: an order that mechanically records a conclusion (e.g., “cognizance taken”) without showing reasoning or consideration of material; such orders are vulnerable to being set aside.
  • Quashing under Section 528 BNSS: a High Court’s power to terminate criminal proceedings to prevent abuse of process or to secure justice, particularly where even the admitted case does not disclose an offence (as guided by State of Haryana v. Bhajan Lal).
  • Flag Code vs. “law”: as per Union of India v. Naveen Jindal & Anr., the Flag Code is not “law” for Article 13 restrictions, though it provides dignity-preserving guidelines; criminal liability must be traced to statutes like the 1971 Act.

5) Conclusion

V K NARAYANAN v. STATE OF MAHARASHTRA crystallizes two operational principles: (1) for Section 2(4)(l) of the Prevention of Insults to National Honour Act, 1971, the prosecution must show intentional inverted display attributable to the accused—mere presence at a flag-hoisting event is insufficient; and (2) Magistrates must not issue process through non-speaking, mechanical orders, since cognizance is a judicial act demanding discernible application of mind. By invoking State of Haryana v. Bhajan Lal via Section 528 BNSS, the Bombay High Court positions these safeguards as abuse-of-process controls, likely shaping how future flag-related prosecutions are screened at inception and challenged at the quashing stage.