Kerala High Court: Viju Abraham, J., granted anticipatory bail to BJP State General Secretary, Lakshadweep, who was accused of insulting the National Flag by holding it upside down; i.e., by placing green on top while saffron on the bottom.
The applicant is the sole accused of the offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971 for insulting the National Flag. The prosecution relied on the photographs shared on WhatsApp groups to allege that the State General Secretary of BJP, Lakshadweep, was seen to be holding the National Flag with “saffron down” and thereby committed the afore-mentioned offence.
Contesting the allegations against him, the applicant contended that no offence would lie against him since exhibition of the flag was not in a public place. The applicant submitted that as part of the “Har Ghar Tiranga” program envisaged by the Government, he took photographs within the precincts of his house and posted the same in a restricted/private WhatsApp group consisting of BJP members from Lakshadweep which was forwarded to various other WhatsApp groups by someone. Inadvertently and without any intention whatsoever, the photograph was taken while holding the Indian National Flag with “saffron down”.
Noticeably, on realising his inadvertent mistake, the applicant immediately made a public apology by stating that the national flag was not held with “saffron down” with an intention whatsoever to dis-respect the Indian National Flag but was occasioned only due to an inadvertent, unintentional and bona fide mistake.
The application for anticipatory bail was opposed by the Lakshadweep Administration on the ground that the applicant is involved in five other criminal cases and that he had committed the alleged offence.
Considering the facts and circumstances of the case and the nature of the allegations, the Court opined that custodial interrogation of the applicant may not be necessary. Hence, the Court allowed the anticipatory bail application on the following grounds:
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“Applicant shall surrender before the investigating officer on 29-08-2022, at 11 a.m., and subject himself to interrogation.
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In the event of arrest in, he shall be produced before the jurisdictional magistrate on the very same day and shall be released on bail, subject to him executing a bail bond for a sum of Rs. 50,000 with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court.
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He shall not attempt to interfere with the investigation or to influence or intimidate any witness in the alleged crime;
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He shall not involve in any other crime while on bail.”
Lastly, the Court held that if any of the aforesaid conditions are violated, the investigating officer in may file an application before the jurisdictional Court for cancellation of bail. The Court also clarified that as per the decision in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, the police will be within the power to investigate the matter and if necessary to effect recoveries on the information if any given by the applicant, even when the applicant is on bail.
[Mohd. Kasim H. K v. State (Union Territory of Lakshadweep, Bail Appl. No. 6446 OF 2022, decided on 19-08-2022]
Advocates who appeared in this case :
Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan and Atul Mathews, Advocates, for the Applicant;
Sajith Kumar V., Advocate, for the UT of Lakshadweep.
*Kamini Sharma, Editorial Assistant has put this report together.
