“The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic”: Madras High Court

Dated: March 22, 2021

                                                                                                                                                           - By Megha Bhatia

The Madras High Court has ruled that cutting a cake with a National Flag icing would not be deemed as an “insult” under Sections of the Prevention of Insults to National Honour Act, 1971.

A Single Bench of Justice N. Anand Venkatesh in a recent decision, said that a gross physical act does not decide patriotism, and that the true test in such situations is the intention behind the act.

The court observed, “There is no doubt that nationalism in a democracy like India is very vital. But, hyper and surfeit adherence to it goes against the prosperity of our nation from all its past glory. A patriot is not one who only raises the Flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance. The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic.”

Background

The present proceedings were brought at the request of the Tamil Nadu government, which sought to have the criminal proceedings before the Magistrate quashed based on a complaint [filed by the Respondent herein].

The Respondent lodged a criminal complaint with the Magistrate after learning of a public event held in Coimbatore in December 2013 at which a cake with the icing of a tricolour Indian map outline with the Ashoka Chakra in the middle was cut and eaten.

He was offended by the way the Indian National Flag was depicted at the ceremony, and claimed that the participants had purposefully disrespected the flag by cutting it into the shape of a cake, which he claimed constituted an offence under Section 2 of the Prevention of Insults to National Honour Act.

According to Section 2 of the Act, “Whoever in any public place burns, mutilates, defaces, difiles, disfigures, destroys, tramples upon, or otherwise shows disrespect to or brings into contempt the Indian National Flag or the Constitution of India, whether by words, either spoken or written, or by actions, shall be punishable with imprisonment for a term up to 3 years or with fine or both.”

The term “Indian National Flag” includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or any part or sections thereof, made of any substance or represented on any substance, according to Explanation 2.

The Respondent argued that the cake in the shape of a tricolour Indian map will fall under Explanation 2’s term “made of any substance or represented on any substance.”

Proceedings before Magistrate 

The Respondent had petitioned the Magistrate under Section 156(3) of the CrPC, requesting that the police issue a FIR in the case.

The Magistrate agreed to treat the petition as a case under Chapter XV of the CrPC and took cognizance of it under Section 190(1)(a) of the CrPC. Following that, the Magistrate proceeded to examine the complainant and two witnesses on oath in compliance with Section 200 of the CrPC.

Following that, the Magistrate used his discretion under Section 156(3) CrPC to issue an order directing the police to file an FIR for an offence under Section 2 of the Act, investigate the matter, and file a Final Report.

Findings

The Single Bench stated right away that the Magistrate’s procedure in the instant case was erroneous. It was held that the Magistrate should have proceeded further after taking cognizance of the matter and using the complaint procedure, either rejecting the complaint under Section 203 CrPC or issuing process to the accused persons under Section 204 CrPC.

It held, “The procedure followed by the learned Magistrate is patently illegal. Power to direct investigation under Section 156(3), Cr.P.C. is done at the pre-cognisance stage. Therefore, once the Magistrate decides to take cognisance and embark upon the procedure stipulated under Chapter XV, Cr.P.C., he cannot revert back to the pre-cognisance stage and pass orders under Section 156(3), Cr.P.C.”

The Bench clarified that if an order is issued under Section 156(3) CrPC and it is followed by a FIR, the inquiry will conclude with a Final Report under Section 173(2) CrPC

Following the submission of such report, the Magistrate is required to take cognizance of it under Section 190(1)(b) of the CrPC.

However, if it is permitted in this situation, the Magistrate will be hearing the same case for the second time.

It observed, “The first time the cognisance has already been taken under Section 190(1)(a), Cr.P.C. and the second time, the Magistrate will be taking cognisance after the Final Report under Section 190(1)(b), Cr.P.C. This will result in a complete violation of the procedure adumbrated under the Cr.P.C.”

In answer to the issue of whether cutting a cake with icing that resembles the national flag is unconstitutional, the Bench said, “even if the entire set of facts stated in the complaint are taken as it is, it must be seen as to what would have been the actual feeling with which the participants would have dispersed after the function was over. 

Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration? Without any hesitation, this Court can hold that the participants would have felt only the former and not the latter.”

In this context, the Bench illustrated as follows: 

An Independence Day or Republic Day festival attracts a large number of people. During such events, the participants are given a national flag to wear. In fact, as the participants leave the venue at the end of the festivities, they no longer have possession of the Flag, and it becomes part of the trash. Would this mean that one of the participants has violated the national flag and should be prosecuted under Section 2 of the act? The obvious reaction is a resounding no.

The Bench thus held, “For any act to be termed as an offence under Section 2, Actus Reus and Mens Rea should be established. The Actus Reus being any of the actions in Section and Explanation 4 and the Mens Rea being the intention to show disrespect or contempt.”

Reliance was placed on a decision of the Kerala High Court in PV Joseph, v. State of Kerala, 2016 SCC OnLine Ker 11466, which ruled that a trial would be unnecessary in a case where the accused individual has no intention of dishonouring the National Flag.

In lieu of this, the Bench noted that the claimant has no personal knowledge of the incident in question. The complainant’s only source of evidence was a media article, according to the report. “It is, therefore, clear that the complaint did not emanate from a person who had witnessed the incident,” the Court said in granting the State’s motion to have the criminal charges quashed.


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