Sanchayita Lahkar

The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath held that the allegations against the accused did not constitute any offence under Section 2(a) of the Prevention of Insults to National Honour Act, 1971, read with Part-III, Section III, Rule 3.6 of the Flag Code of India, 2002. Accordingly, the Court directed that the final report and all further proceedings in the criminal case pending before the Judicial First Class Magistrate Court, Angamaly, stand quashed.

The petitioner, Vinu C Kunjappan, aged 40, served as the Secretary of the Angamaly Municipality during the occurrence of the incident on August 15, 2015. According to the prosecution, the National Flag was hoisted at the Municipality premises in Angamaly in connection with the Independence Day celebrations on the morning of August 15, 2015. However, the flag was allegedly left hoisted until noon on August 17, 2015, without being lowered at sunset, contrary to provisions of the Flag Code of India, 2002.

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Based on this incident, the Station House Officer, Angamaly Police Station, registered a suo motu FIR (Crime No. 1529/2015). Following the investigation, a final report was filed before the Judicial First Class Magistrate Court, Angamaly, charging the petitioner with offences punishable under Section 2(a) of the Prevention of Insults to National Honour Act, 1971, read with Part-III, Section III, Rule 3.6 of the Flag Code of India, 2002.

The trial court took cognizance of the offence and numbered the case as C.C. No.410/2016. The petitioner subsequently approached the Kerala High Court, invoking Section 482 of the Code of Criminal Procedure, seeking to quash the criminal proceedings initiated against him. The petitioner contended that the allegations in the final report, even if taken at face value, did not prima facie constitute an offence or make out any case against him.

In response, the State of Kerala, represented by the Public Prosecutor, maintained that the petitioner, being the head and Secretary of the Municipality, had responsibility for ensuring compliance with the Flag Code provisions. The prosecution argued that the failure to lower the National Flag at sunset constituted disrespect and insult to the National Honour, thus violating Section 2(a) of the 1971 Act.

The core issue before the High Court was whether the petitioner's inaction to lower the National Flag by sunset constituted an offence under Section 2(a) of the Act read with Rule 3.6 of the Flag Code. The petitioner’s counsel argued that mere inaction without any intent or deliberate disrespect to the National Flag could not amount to an offence. Reliance was placed on statutory interpretation, specifically the absence of explicit provisions penalizing such conduct under the Flag Code or the Prevention of Insults to National Honour Act.

The prosecution, conversely, highlighted that the Flag Code provided clear instructions mandating lowering of the National Flag after sunset, asserting that any deviation must be viewed as disrespectful. However, no evidence was presented to suggest that the petitioner deliberately or intentionally chose not to lower the flag, nor that his actions amounted to an affront or insult to the National Flag.

Justice Dr. Kauser Edappagath observed: "Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1)(a) of the Constitution of India, being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation. However, the fundamental right to fly the National Flag is not absolute but a qualified one, being subject to reasonable restrictions under Clause (2) of Article 19 of the Constitution of India."

The Court recorded: "Section 2 of the Act of 1971 deals with insults to the Indian National Flag and Constitution of India." The court stated explicitly that: "To attract the offence under Section 2 of the Act of 1971, a person should burn, mutilate, deface, defile, disfigure, destroy, trample upon or otherwise show disrespect to or bring into contempt, the Indian National Flag or the Constitution of India or any part thereof, in any public place or in any other place within public view."

Justice Edappagath further stated: "The act of not lowering the National Flag after sunset does not fall within any of the acts mentioned in Section 2 or various instances mentioned in Explanation 4. Sub-clause (a) of Explanation 4 gets attracted in a case where a gross affront or indignity is offered to the Indian National Flag. The prosecution has no case that by not lowering the National Flag, the petitioner had offered a gross affront or indignity to the Indian National Flag."

Additionally, the Court observed explicitly: "Mere lapse or inaction on the part of a person in not lowering the flown National Flag after sunset cannot be said to be an act of gross affront or indignity, or insult to the National Flag. Unless there is a deliberate action with an intention to insult the national honour or show disrespect to the National Flag, the provisions of the Act of 1971 cannot be attracted."

The Court stated further: "In the absence of any intention on the part of the petitioner in deliberately not lowering the National Flag after sunset, the said act cannot be said to be one showing insult or disrespect to the National Flag. There is no material to show mens rea on the part of the petitioner to show disrespect to the National Flag and thereby to undermine sovereignty of the nation."

It was also recorded that: "Flag Code, 2002 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. Penal consequences cannot be invoked unless there is a statutory provision for the same."

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The High Court directed explicitly that: The Annexure II final report and all further proceedings in C.C.No.410/2016 on the files of the trial court hereby stand quashed. The Court expressly allowed the Criminal Miscellaneous Case filed by the petitioner, clearly indicating the termination of the criminal proceedings initiated against him.

The Court specifically noted: "Even if the entire allegations in Annexure II final report together with the materials collected during investigation which forms part of the final report are believed in its entirety, no offence under Section 2(a) of Act of 1971 read with Part-III, Section III, Rule 3.6 of the Flag Code, 2002 is made out against the petitioner. Hence, no useful purpose will be served by allowing criminal prosecution against the petitioner to continue."

Advocates Representing the Parties

For the Petitioners: Sri. S. Rajeev, Sri. K.K. Dheerendrakrishnan, Sri. V. Vinay, Sri. D. Feroze, Sri. Anand Kalyanakrishnan

For the Respondents: Sri. Sangeetha Raj N.R., Public Prosecutor

Case Title: Vinu C Kunjappan v. State of Kerala

Neutral Citation: 2025:KER:56179

Case Number: Crl.M.C.No.9251 of 2019

Bench: Justice Dr. Kauser Edappagath