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P.V. Joseph v. State Of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937 Crl.MC.No. 8035 of 2015
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C.C.NO.1684 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
CHERTHALA
----------------------- PETITIONER(S)/ACCUSED :
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1. P.V.JOSEPH, AGED 71 YEARS,
S/O.VARKEY, RESIDING AT JASMINE VILLA, VARNAM P.O.,
CHERTHALA, ALAPPUZHA.
2. P.L.MARIYAMMA, AGED 50 YEARS,
W/O.THOMAS, RESIDING AT VAYALTHARA HOUSE, VARNAM P.O.,
CHERTHALA.
BY ADV. SRI.JOBY CYRIAC
RESPONDENT(S)/STATE :
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
BY PUBLIC PROSECUTOR SMT.MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06-01-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Msd.
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Crl.MC.No. 8035 of 2015 ------------------------------------
APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE A1: THE TRUE COPY OF THE FINAL REPORT IN
CRIME NO.863/2015 WHICH WAS TAKEN ON FILE BY THE COURT BELOW AS C.C.NO.1684/2015 OF JFMC II,
CHERTHALA.
ANNEXURE A2: TRUE COPY OF THE BARE ACT NAMELY 'PREVENTION OF INSULTS TO NATIONAL HONOR ACT, 1971'.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.S.TO JUDGE.
Msd.
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B. KEMAL PASHA, J.
................................................................
CRL.M.C. No. 8035 of 2015
...............................................................
Dated this the 6thday of January, 2016
O R D E R
Petitioners are accused in C.C.No.1684/2015 of the Judicial First Class Magistrate's Court-II, Cherthala alleging an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971. The prosecution case is that the petitioners did not lower the National Flag which was hoisted in connection with the 'Independence Day' celebrations at their co-operative society even after 9.30 p.m.
2. The learned counsel for the petitioners has invited the attention of this Court to the decision rendered by the Division Bench of the Bombay High Court in Amgonda Vithoba Pandhare v. Union of India and others[2012(4)
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CRL.M.C.No. 8035 of 2015 -: 2 :-
Bom. C.R.(Cri) 219] wherein it was held:
"Explanation 4 gives various instances of disrespect to the Indian National Flag. The offence of not lowering down the flag after sunset does not fall either in the various instances which are mentioned in Explanation 4 or in Section 2 of the said Act. The averments in the complaint, therefore, even if they are accepted at its face value, does not constitute an offence within the meaning of Section 2 of the said Act."
3. Their Lordships had relied on the decision of the Apex Court in Union of India v. Navin Jindal & another
rendered in Civil Appeal No.453 of 2004 wherein it was held that the Flag Code contains executive instructions of the Central Government and, therefore, it is not a law within the meaning of Article 13(3)(a) of the Constitution of India. It is a model code of conduct to be followed compulsorily by all the citizens of India. Apart from that, penal consequences
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CRL.M.C.No. 8035 of 2015 -: 3 :-
cannot be invited unless there is a statutory provision for the same.
4. Going by the decisions noted supra, it seems that the prosecution in this case is quite unnecessary. Apart from that, it seems that there was no intention on the part of the petitioners to dishonour the National Flag. True that it was an omission on their part in lowering the National Flag after the prescribed time. The prosecution seems to be quite unnecessary and therefore, the same can be quashed. In the result, this Crl.M.C. is allowed and all further proceedings against the petitioners pursuant to Annexure A1 Final Report in C.C.No.1684/2015 on the file of the Judicial First Class Magistrate's Court-II, Cherthala, are hereby quashed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/- [True copy] P.S. to Judge
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