Karnataka High Court
Mr. N.R. Narayana Murthy S/O Nagavara ... vs Kannada Rakshana Vakeelara Vedike ... on 14 August, 2007
Equivalent citations: AIR2007KANT174, 2007CRILJ4443, 2007(6)KARLJ338, AIR 2007 KARNATAKA 174, 2007 (5) AIR KAR R 574, (2008) 62 ALLINDCAS 496 (KAR), (2007) ILR (KANT) 3589, 2008 (60) ALLCRIC 38 SOC, (2007) 4 ALLCRILR 174, (2007) 6 KANT LJ 338
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER K. Bhakthavatsala, J.
Page 1706
1. The petitioner, who is the Chairman and founder President of Infosys, is before this Court under Section 482 of the Code of Criminal Procedure, praying for quashing the proceedings in P C R No. 7710/2007 (C C No. 12359/2007) on the file of II Addl. Chief Metropolitan Magistrate, Bangalore, for the offence under Section 3 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as 'the National Honour Act'.)
2. The petitioner is represented by Sri K.K. Venkugopal, learned Senior Counsel along with Sri K. Shashikiran Shetty. The respondent is represented by Sri C.H. Hanumantharaya, learned Senior Counsel, along with Sri M.K. Vijayakumar.
3. The brief facts of the case leading to the filing of the Petition may be stated as under:
On 3.5.2007 the respondent/Karnataka Rakshana Vakeelara Vedike (hereinafter referred to as 'the Forum') lodged a private complaint under Section 200 of Cr.P C against the petitioner alleging that on 8.4.2007 in the inaugural function of the Infosys Global Training Center at Mysore, attended by the former President of India, Dr. A.P.J. Abdul Khalam, as the Chief Guest, National Anthem was not sung by mouth. When the Press Reporters questioned the petitioner as to non-singing of the National Anthem, for which the petitioner replied:
We had formed a five members team to sing Indian National Anthem, but as foreign dignitaries were present on the dias, with a view to avoid any delicacy or uncomfortable-ness to them, we have cancelled the same.
It is alleged that the above said statement of the petitioner is amounting to disrespect to the National Anthem and therefore committed an offence under Section 3 of the National Honour Act.
The learned II Addl. Chief Metropolitan Magistrate at Bangalore, after recording sworn statement of the complainant has taken cognizance for the offence under Section 3 of the National Honour Act and issued process to the accused. This is impugned in this Petition.
4. Sri K.K. Venugopal, learned Senior Counsel, contended as under that:
(i) the Learned II Additional Chief Metropolitan Magistrate at Bangalore, had no jurisdiction to take cognizance of the offence alleged to be have been committed at Mysore.
(ii) Section 2, of the Prevention of Insults to National Honour Act, 1971, does not deal with insult to National Anthem and therefore Section 3 Page 1707 of the National Honour Act addressing insult to National Anthem is not correct.
(iii) petitioner has not prevented any one from singing the National Anthem.
(iv) there is no provision of law, which obliges anyone to sing the National Anthem, relied on (Bijoe Emmanuel v. State of Kerala) (paras-10 and 11).
(v) inherent powers under Section 482 of Cr.P C could be exercised either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice, relied on (1992) Supp. 1 SCC 335 (State of Haryana and Ors. v. Bhajan Lal and Ors.) (Para-102) and (Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors.) (Para-22).
(vi) the allegations in the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, the High Court can exercise its power under Section 482 of Cr. P. C., relied on (R.P. Kapur v. State of Punjab) (para-6).
(vii) criminal complaint must disclose the facts which constitute the offence alleged, relied on (Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda) (para-11), (2005) 7 SCC 69 (Vijaya Rao v. State of Rajasthan (Para-5) and (Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi) (Paras 8 and 12).
(viii) document of sterling and unimpeachable character can be relied upon by the High Court while exercising its inherent powers under Section 482 of Cr.P.C and under Article 226 of the Constitution, relied on (State of Orissa v. Debendra Nath Padhi) (para-29).
(ix) the Petitioner apologised for his remarks saying "if the media statement has hurt anybody's sentiments, I deeply apolise" and such statement can not be taken that the petitioner was guilty for the offence under Section 3 of the National Honour Act.
Page 1708
5. Per contra, Sri C.H. Hanumantharaya, learned Sr. Counsel, submitted as under that:
(i) under Section 202 of Cr.P C, if a complaint is presented to a Magistrate and if he had no jurisdiction to entertain the Petition, he may send it to the competent Court.
(ii) as per direction No. 9 of the Deputy Commissioner, Mysore District, (vide-Annexure-K) communicated to the petitioner National Anthem was to be sung loudly in the beginning and at the conclusion of the function.
(iii) press statement of the petitioner that to avoid delicacy or uncomfortable-ness to the Foreign dignitaries, who were present on the dias, he did not allow the persons nominated to sing and instead of that he played instrumental version of National Anthem, is amounting to disrespect to the Anthem.
(iv) according to the Under Secretary to D P A R, State of Karnataka, whenever the President of India participates in any function, at the beginning and at the conclusion of the function, Indian National Anthem will be sung.
(v) it is duty of the petitioner under Article 51A of the Constitution of India to abode by the Constitution and respect the National Anthem.
(vi) since the press report which constitutes an offence under Section 3 of the National Honour Act was published in the new papers at Bangalore, the Learned Magistrate at Bangalore, was competent to take cognizance of the offence.
6. The short question that arises for consideration is:
Whether playing musical version of the Indian National Anthem instead of singing National Anthem by mouth or the press statement, is an offence punishable under Section 3 of the Prevention of Insults to National Honour Act, 1971?
7. My answer to the above question is in the negative for the following reasons;
The Constitution (Forty-second Amendment) Act, 1976 has incorporation Article 51A Para-IVA to the Constitution of India. According to Article 51A(a), it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. National Flag, National Anthem and the Constitution of India are the symbols of sovereignty and the integrity of the Nation. Public acts of insults to these symbols must be prevented. The Prevention of Insults to National Honour Act, 1971 was enacted and brought on the Statute book. The National Honour Act is a very short enactment consists of only three Sections. Section 2 of the National Honour Act deals with insult to Indian National Flag and Constitution of India. Section 3 of the National Honour Act says that whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing Page 1709 shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both". Section 3A prescribes enhanced penalty on second and subsequent convictions under Sections 2 and 3 of the National Honour Act.
The National Honour Act does not define what is National Anthem, when and how it should be sung. Therefore, the Orders relating to the National Anthem has been made. Order-I says what is National Anthem, and prescribes full version playing approximately 52 seconds and short version in 20 seconds. Order-II gives a list of the occasions National Anthen shall be played. Order-III deals regarding mass singing of the Anthem on the occasions as mentioned therein. According to Order-III(1)(ii), on the arrival of the President at any Government or Public function (but excluding formal State functions and mass functions) and also immediately before his departure from such functions, the full version of the Anthem shall be played accompanied by mass singing. Order IV says when Foreign Anthems should be played. Order-V says that whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of newsreel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.
8. On conjoint reading of the National Honour Act and the Orders relating to the Indian National Anthem, and particularly the words Viz. "sung or played" used in the Order in V makes it clear that playing or recorded musical version of the Indian National Anthem is not prohibited. Further, the contention of the respondent that the petitioner's press statement is amounting to insult to the National Anthem is without any basis and the same has to be rejected summarily.
9. The petitioner is a law-abiding citizen and recipient of numerous awards and honours. Further, the Indira Gandhi National Open University, in its 17th Convocation, has awarded Doctor of Science (Honoris Causa) to the petitioner. After the Petitioner came to know the then President of India's visit to Mysore on 8th of April 2007, he wrote a letter on 6th of April 2007, inviting him to visit the World's largest and sophisticated corporate education facility at Mysore and deliver talk to youngsters at his amphi-theatre on 8.4.2007. On the very same day, the President of India accepted the invitation. The Office of the President intimated about the arrangements to be on the stage. It is crystal clear that the petitioner had arranged a five-member team to sing the Anthem. Later on, he changed his mind and played musical version of the National Anthem on 8.4.2004 at 3.30 p m in the Infosys Campus at Mysore. Playing musical version of the Indian National Anthem is neither prohibited nor held an offence under Section 3 of the National Honour Act. The Infosys President, Sri N.R. Narayana Murthy has given Press statement saying, "since the Foreigners would be un-comfortable, the National Anthem was not sung". At this stage it is Page 1710 pertinent mention that we are living in era of globalization. The private complaint was filed on 3.5.2007. The learned Magistrate took cognizance of offence alleged against the petitioner.
10. According to Section 177 of Cr. P C, every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Admittedly, the alleged incident occurred at Infosys Campus at Mysore. The II-Addl. Chief Metropolitan Magistrate at Bangalore had no territorial jurisdiction to try the alleged offence. According to Section 201(a) of Cr. P C, if a complaint is made to a Magistrate who is not competent to take cognizance of the offence, he should return the complaint for presentation to the proper Court with an endorsement to that effect. But, in the instant case, the learned Magistrate, without application of mind to the facts and circumstances of the case, has taken cognizance following the decisions applicable to defamation cases. On that score alone, the proceedings initiated against the petitioner in P C R No. 7710/2007 (C C No. 12359/2007) are liable to be quashed.
11. In so far as merits of the case is concerned, since the National Honour Act does not bar playing musical version of the National Anthem, it cannot be said that the petitioner has committed the offence under Section 3 of the National Honour Act. Though the petitioner is a law-abiding citizen and he has not shown any dis-respect to the National Anthem, the Forum has taken him for a ride.
12. The contention of Sri K.K. Venugopal that since Section 2 of the National Honour Act does not say anything about National Anthem and therefore under Section 3 of the National Honour Act prevention of singing of Indian National Anthem can not be made an offence is not correct. Except that all other contentions decisions relied on by Sri Venugopal are correct. There is no merit in the argument addressed by Sri. Hanumantharaya.
13. In the result, the Petition filed under Section 482 of Cr. P C is allowed. The proceedings in P C R No. 7710/2007 (C C No. 12359/2007) on the file of II Addl. Chief Metropolitan Magistrate, Bangalore, is quashed.