S.S Dani, J.:— Heard Shri Shelke, learned Counsel for the petitioner and Shri Patil, learned A.P.P, for the State.

2. The matter is taken up for final hearing by consent. The petitioner is the Sarpanch of village Pangri which is under the jurisdiction of Loha police station, district Nanded. It is alleged that on 15-8-1994, on the Independence day, the petitioner while hoisting the Indian National Flag brought into contempt by not properly unfurling the Flag. On the basts of this complaint, an offence, punishable under section 2 of the Prevention of Insults to National Honour Act, 1971 came to be registered against the petitioner at Crime No. 23 of 1994 at Loha police station. It is alleged by the prosecution that at village Pangri the petitioner hoisted and unfurled the Flag by tying the bottom with a string and not from the top side and as such, the Flag came one foot down from upwards and this brought the Indian National Flag into contempt by his own action. The petitioner moved the Sessions Court at Nanded under section 438 of the Criminal Procedure Code in Criminal Application No. 449 of 1994 for the relief of anticipatory bail. The 2nd Additional Sessions Judge, Nanded, by the impugned order dated 24-8-1994, however, rejected the application on the ground that the alleged offence is bailable one and as such, the provisions of section 438, Cr. P.C are inapplicable. The petitioner has, therefore, approached this Court in the present application against the said order and has also sought for the same relief of anticipatory bail.

3. section 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as ‘the Act’ for the sake of bravity) runs thus:

“Whoever in any public place or in any other place within public view burns, mutilates, …. or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”

4. The 2nd Additional Sessions Judge, Nanded construed this offence as falling in category No. 3 of “II-Classification of offences against other laws” as mentioned in Schedule I of the Code of Criminal Procedure, 1973. The said classification runs thus:

Offence Cognizable or Non-cognizable Bailable or Non-Bailable By what Court triable If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate.

5. According to this classification, therefore, an offence is bailable if punishable with imprisonment for less than three years or with fine only and it is on this basis that the 2nd Additional Sessions Judge held the offence complained of in this case as a bailable one and as such, refused to apply the provisions of section 438, Cr. P.C, 1973. Shri Shelke, learned Counsel for the petitioner, submitted that an offence under section 2 of the Act is one for which the punishment can be extended to 3 years and as such it falls under category No. 2 of the classification which makes on offence non-bailable if punishable with imprisonment for 3 years and upwards but not more than 7 years. Shri Shelke, learned Counsel for the petitioner, therefore, submitted that the application under section 438, Cr. P.C for anticipatory bail is permissible in such a case.

6. The 2nd Additional Sessions Judge, Nanded found that the maximum punishment for the offence complained of is less than 3 years but not 3 years and upwards and as such, the offence is covered by 3rd category and not by 2nd category of the classfication. It is, however, to be noted that the punishment for an offence under section 2 of the Act can be inflicted not only upto 3 years but also for 3 years. It is no doubt true that the punishment for such an offence can be lesser than 3 years but it also at the same time cannot be forgotten that it can be for complete 3 years. The classification at category No. 2 in the Schedule I of Cr. P.C deals with such punishments which are for three years and upwards. Therefore, it follows that if the punishment is of complete 3 years such an offence would fall in the category at Sr. No. 2. If, therefore, the punishment is of 3 years it cannot be said to be for less than 3 years in any case and, therefore, such an offence cannot fall within the purview of category No. 3 of the said classification. An offence becomes, bailable under the category No. 3 only when the imprisonment is for less than 3 years. When the minimum punishment is of 3 years and not less than that, an offence is covered by category No. 2 of the said classification. When an offence is punishable with imprisonment which may extend to 3 years it follows that the Court can impose the maximum imprisonment of complete 3 years and as such it becomes a non-bailable offence as falling within the purview of category, No. 2 of the said classification.

7. At this juncture a useful reference can be made to the offences under the Indian Penal Code which are punishable with imprisonment which may extend to 3 years and also certain offences punishable with imprisonment for less than 3 years. In the first category an offence, therefore, becomes punishable with imprisonment for three years as the Court can impose such maximum imprisonment for such an offence. It cannot be lost sight of the fact that if the Legislature really intended to make the offence under section 2 of the Act involved in this case punishable not with 3 years but with imprisonmnt of less than 3 years, the Act would have been worded accordingly. It may be reiterated that section 2 of the Act empowers the Court to sentence the accused upto 3 years that is even for 3 complete years though it may be in certain cases less than 3 years. In such cases the maxim “QUOTIES IN VERBIS NULLA EST AMBISUITAS, IB NULLA EXPOSLTIO CONTRA VERBA PIENDA EST” would come into play wherein in the absence of ambiguity, no exposition shall be made which is opposed to the express words. It is to be noted that a Court of law will not make any interpretation contrary to the express letter of a statute; for nothing can so well explain the meaning of the makers of the Act as their own through the words. It would, therefore, be dangerous to give scope for making a construction in any case against the express words when the meaning of the makers is not opposed to the words.

8. Section 2 of the Act empowers the Court to sentence an accused upto 3 years and it is a maximum sentence but permissible. Therefore, it makes no difference by the fact that the imprisonment for such an offence can also be less than 3 years. To put in figures, for an offenct under section 2 of the Act, the imprisonment for 2 years and 365 days can be inflicted or ever less than that. As such, it would be an offence punishable with imprisonment for 3 years which would make it as a non bailable one. If the punishment is upto 2 years and 364 days it would be an offence punishable with imprisonment for less than 3 years so as to make it a bailable on under category No. 3 of the said classification. If the offence therefore, falls within the ??? corners of category No. 2 of the said classification, an application under section 438, Cr. P.C for a relief of anticipatory bail would be maintainable as the offence would be a non-bailable one. The learned 2nd Additional Sessions Judge, therefore, committed an error in treating the offenc under section 2 of the Act as a bailable one.

9. In asmuch as, the offence complained of is a non-bailable one, the provisions of section 438, Cr. P.C would be attracted in the present case and the petitioner would be entitled to a relief of anticipatory bail if the Court finds it fit and expedient. Admittedly in the case at hand, the matter in respect of anticipatory bail has not been decided by the lower Court on its merits. The relief has been rejected exclusively on the ground that such an application under section 438, Cr. P.C was not maintainable. In view of the fact that such an application is maintainable under section 438, Cr. P.C, it is required to be decided on its own merits and for that purpose the matter this required to be sent back to the Sessions Court for its decision on merits. It is submitted by Shri Shelke, learned Counsel for the petitioner, that till the matter is decided on its own merits by the Sessions Court, the present petitioner be released on interim anticipatory bail. Shri Patil, learned A.P.P, for the State has no objection to grant such interim relief till the matter is finally decided on its merits.

10. In the result. Criminal Application No. 1106 of 1994 succeeds. The order dated 24-8-1994 of the 2nd Additional Sessions Judge, Nanded in Miscellaneous Criminal Application No. 449 of 1994 holding the application under section 438, Criminal Procedure Code in connection with Crime No. 23 of 1994 of Loha police station under section 2 of the Prevention of Insults to National Honour Act, 1971 as not maintainable, is hereby quashed and set aside. The matter is sent back to the Sessions Court, Nanded for its disposal on merits. It is further directed that till the disposal of the application on its merits, the petitioner Ramrao Marotrao Budruk shall, be on interim bail of Rs. 5000/- with one surety of the like amount and on conditions that he shall report to the Loha police station on 2nd and 4th Sunday of each month between 8 a.m to 2 p.m and shall not leave the local jurisdiction of the concerned police station without prior permission of the investigating officer. Criminal Application stands disposed of.

11. Application succeed.