Bangalore District Court
Gopinath T vs Prakash Shetty on 9 July, 2024
KABC030575932016
Presented on : 20.09.2016
Registered on : 20.09.2016
Decided on : 09.07.2024
Duration : 07y/09m/19days
IN THE COURT OF XLI ADDL. CHIEF JUDICIAL
MAGISTRATE, AT : BENGALURU
PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA
B.A.,LL.B.,
XLI Addl. Chief Judicial Magistrate
Bengaluru
Dated on this 9th day July 2024
C.C.No.21367/2016
COMPLAINANT : The State
by Cubbon Park Police Station
-V/s-
ACCUSED : 1. Prakash shetty,
S/o. Mahabala Shetty,
Aged 55 years, R/at. # 646,
Ajantha classic, F.F-5, 17th cross,
18th main,Rajarajeshwari Nagar
Bengaluru.
2. K.N.Shanthakumar,
S/o.K.A.Netta Kallappa,
Aged 56 years, Editor,
Prajavani daily,
The printers[Mysore] Pvt.Ltd.,
# 75, M.G.Road, Bengaluru.
2 C.C.No.21367/2016
Date of Commission of offence 15.08.2014
Date of report 28.08.2014
Date of arrest On 13.04.2018, the accused No.1
and 2 appeared through their
counsel and got enlarged
themselves on bail.
Name of the complainant Gopinath T
Date of commencement 30.08.2019
of recording Evidence
Date of closing evidence 12.06.2024
Offences complained of U/Sec.2 of Prevention of Insult
to National Honor's Act 1971
Opinion of the Judge As per final orders
State Represented by Senior Asst. Public Prosecutor
Accused Represented by Vedanayaki Kiran D, Advocate.
JUDGMENT
[Delivered on 09.07.2024] The P.S.I of Cubbon Park police station has filed charge sheet against the accused for the offence punishable U/Sec. 2 of Prevention of Insult to National Honor's Act 1971.
2. Brief facts of prosecution case is as follows:
The accused No.1 being the cartoonist and accused No.2 being the editor of Prajavani Kannada daily printed the national flag and written certain words thereon on 15.08.2014 at page 3 C.C.No.21367/2016 No.B7 and on 17.08.2014 at page No.8 of Prajavani Kannada daily, published the same and thereby insulted the Indian National flag. On the basis of computerized typed information given by CW.1, the Cubbon Park police have registered this case against the accused in crime No.181/2014.
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offence punishable U/Sec. 2 of Prevention of Insult to National Honor's Act 1971.
4. In response to the service of summons on 13.04.2018, the accused appeared through their counsel and got enlarged themselves on bail. This Court complied with Sec.207 of Cr.P.C., and furnished charge sheet copy to the accused.
5. This Court heard both the parties and framed accusation for the offence punishable U/Sec. 2 of Prevention of Insult to National Honor's Act 1971. The accused did not plead guilty. They claimed to be tried.
4 C.C.No.21367/2016
6. In order to prove its case, the prosecution got examined 2 witness as PW.1 and 2 and got marked Ex.P.1 to 8 documents. After the closure of the evidence of the prosecution, the court recorded the statements of the accused U/Sec.313 of Cr.P.C., wherein they denied the incriminating evidence led against them. They did not choose to lead their defense evidence.
7. I have heard the arguments of Senior APP and Sr.MVS Advocate.
8. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, accused No.1 being the cartoonist and accused No.2 being the editor printed national flag and written certain words thereon on 15.08.2014 at page No.B7 and on 17.08.2014 at page No.8 of Prajavani Kannada daily, published the same, insulted the Indian National flag and thereby they have committed the offence 5 C.C.No.21367/2016 punishable U/Sec. 2 of Prevention of Insult to National Honor's Act 1971?
2. What order?
9. My answers to the above points are as under:
Point No.1 : In Negative
Point No.2 : As per final orders for the following:
REASONS
Point No.1:
10. The burden is casted on the prosecution to prove that, accused No.1 being the cartoonist and accused No.2 being the editor printed national flag and written certain words thereon on 15.08.2014 at page No.B7 and on 17.08.2014 at page No.8 of Prajavani Kannada daily, published the same and thereby insulted the Indian National flag.
11. In order to prove its case, the prosecution got examined the complainant/CW.1 as PW.1 and investigating officer/CW.6 as PW.2 and got marked the first information/complaint as Ex.P.1, cartoons published in Prajavani Kannada daily as Ex.P.2, Ex.P.3, FIR as Ex.P.4, spot mahazer as Ex.P.5, reply given by DGM HR of 6 C.C.No.21367/2016 The Printers [Mysore] Pvt.Ltd., as Ex.P.6, seizure mahazer as Ex.P.7 and legal opinion as Ex.P.8.
12. CW.1/PW.1 - Gopinath in his evidence has stated that, 2 cartoons were printed in " Prajavani Kananda Daily News paper dated 15.08.2014 and 17.08.2014, which was drawn by accused No.1. In that Prajavani Kannada Daily dated 15.08.2014 at Page No.P-7 Indian flag was drawn and the Cartoon of Mahathma Gandhiji was drawn above the flag. In that cartoon there were no 24 spokes in Ashoka chakra. By drawing the cartoon of " Mahathma Gandhi" above the National Flag, it was projected that the person is superior than the Indian National Flag. By doing so, Indian National Flag was insulted. On 17.08.2014 in Prajavani Kannada daily, the accused No.1 drawn a cartoon wherein there were no 24 spokes in the Ashok Chakra and certain words were written on the National Flag. As it is an insult to national flag, he gave Ex.P.1 complaint to Cubbon Park police on 17.08.2014. The cartoon published in Prajavani, Kannada daily dated 15.08.2014 is 7 C.C.No.21367/2016 marked as Ex.P.2 and cartoon dated 17.08.2014 is marked as Ex.P.3. He has identified the accused.
13. CW.6/PW.2 - Smt.Kathayini Alwa in her evidence has stated that, while she was working as PSI at Cubbon Park police station on 17.08.2014, the CW.1 gave Ex.P.1 complaint. She sought legal opinion from the legal advisor of Commissioner's office and on 28.08.2014 by obtaining the opinion, she registered Ex.P.4 - FIR U/Sec.2 of prevention of Insult to National Honors Act. On 29.08.2014, she issued notice to PW.1 to produce Prajavani Kannada daily dated 17.08.2014. On 30.08.2014, she visited the spot and drawn Ex.P.5 mahazar in the presence of CW.2 and 3. On 28.04.2014 she issued notice to the M.D., of printers[Mysore] Pvt. Ltd., and asked him to furnish the details of the accused. Accordingly, on 28.06.2016, she received Ex.P.6 report. She seized page No.7[B] of Prajavani Kannada daily dated 15.08.2014 and page No. 8[B] dated 17.08.2014 on 18.05.2016 by drawing Ex.P.7 mahazar in the presence of CW.4 and 5, which were obtained from the office of Prajavani news paper. Those news papers are marked 8 C.C.No.21367/2016 as Ex.P.2 and 3. On the same day, she recorded the statements of CW.4 and 5. On 25.05.2016, the accused No.1 appeared before the court and gave his written explanation. By completing the investigation, she filed charge sheet against the accused.
14. On the basis of Ex.P.1 computerized typed information given by PW.1, the Cubbon park police have registered this case, investigated the matter and filed charge sheet against the accused. In Ex.P.1, the PW.1 alleged that the Prajavani Kannada Daily news paper cartoonist Mr. Prakash shetty and the editor of the news paper insulted Indian National Flag by putting inscription/ lettering on the National Flag, which was published on 17.08.2014 at page No.8[B] and 15.08.2014 at Page No.B7 of Prajavani Kannada daily, wherein Mahathma Gandhi was shown above the National Flag. As the citizen of the nation, he would deeply felt bad how the cartoonist can forget the Flag code of India and Editor of News paper, who is well experienced had ignored the flag code and published the news paper. Hence, he requested the police to 9 C.C.No.21367/2016 take necessary legal action against the accused and do needful to the citizen of the country.
15. Before discussing the oral and documentary evidence placed before the court, it is necessary to note the object and reasons of the enactment of Prevention of Insult to National Honors Act,1971. As per the act, the scope of the law is restricted to overt acts of insult and to and attack on, the national symbols by burning, trampling , defiling or mutilating in public.
16. Sec.2 of the Act deals with Insults to Indian National Flag and Constitution of India, which reads thus--Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise [shows disrespect to or] brings into contempt [whether by words, either spoken or written, or by acts] the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.
10 C.C.No.21367/2016Explanation 4 of Sec.2 clarifies disrespect to the Indian National Flag means and includes:
[a] a gross affront or indignity offered to the Indian National Flag; or [b] dipping the Indian National Flag in salute to any person or thing; or [c] flying the Indian National Flag at half-mast except on occasions on which the Indian National Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or [d] using the Indian National Flag as a drapery in any form whatsoever except in State funerals or armed forces or other para-military forces funerals; or [e] using the Indian National Flag, [i] as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; or 11 C.C.No.21367/2016 [ii] by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material; or] [f] putting any kind of inscription upon the Indian National Flag; or [g] using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence day; or [h] using the Indian National Flag as covering for a statute or a monument or a speaker's desk ora speaker's platform; or [i] allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or 12 C.C.No.21367/2016 [j] draping the Indian National Flag over the hood, top and sides or back or on a vehicle, train, boat or an aircraft or any other similar object; or [k] using the Indian National Flag as a covering for a building; or [l] intentionally displaying the Indian National Flag with the "saffron" down.]
17. Under the Flag code of India, a National Flag is described wherein it is stated that, the Indian National Flag shall be a tri colour panel made up of three rectangular panels or sub-panels of equal widths. The colour of the top panel shall be India saffron [Kesari] and that of the bottom panel shall be India green. The middle panel shall be white, bearing at is centre, the design of Ashoka Chakra in navy blue colour with 24 equally spaced spokes. The Ashoka Chakra shall preferably be screen printed or otherwise printed or stenciled or suitably embroidered and shall be completely visible on both sides of the Flag in the centre of the white panel. The National Flag of India shall be made of hand 13 C.C.No.21367/2016 spun and hand woven wool/cotton/silk, Khadi bunting. The National Flag shall be rectangular in shape. The ratio of the length to the height[width] of the flag shall be 3: 2.
18. U/Sec.2 of Prevention of Insult to National Honors act drawing national flag without following the standard sizes as contemplated under Flag code of India or drawing cartoons of national flag is not considered as an insult to Indian National Flag and Constitution of India.
19. Cartoons are humorous of satirical drawings, animations or films that often feature exaggerated or caricatured characters, situations and storylines. They can be used to entertain, educate, comment on current events and telling stories. In general, cartoons are a form of visual communication that uses humor, irony and creativity to convey messages, ideas or emotions. By perusing Ex.P.2, we can say that the cartoon of National Flag was drawn and the picture of Mahatma Gandhi was shown as though he was sitting on the cloud near the national flag, the words ċ'‡ Ψгν is 14 C.C.No.21367/2016 written 4 times and a statement ишĆ' нĠỳń ΐїхಳù њẄಳ ċ'―†Ğỳ¯ 'ċ'‡ Ψгν' Ą'†ಳĠỳџгΙΧĕ'ўґń. In Ex.P.3 the cartoon of National flag is drawn and a statement is written as іПъ Ą'ಳ¯ΣΧѕ Λ†ґ― еѕ-- еẀџ ќїΧʼnїΡń Ħỳџ--ΎķџΡ. On the saffron panel of the flag, the words written as "јłхΎў еẁўхಳù" and on the green panel of the flag written as Ή7эψ згΉĝỳ...... ẃгẃѕџ ĜỳѕΠ Ćỳłќ ...... њяẀΠĆ' ĚỳŁгά ąỳē' .... Ą'―†ќ-- ĥ„Ẅѕă ..... It is pertinent to note here that the accused No.1 and 2 did not write any wordings insulting national flag. The cartoonist expressed the opinion of prevailing political situation through his art.
20. During the course of cross examination, the PW.1 admits that, in the inscription or lettering as made on the National Flag found on Ex.P.2, it cannot be held as insult if, an aero plane flies above the national flag. He too admits that not showing 24 spokes 15 C.C.No.21367/2016 in Ashoka Chakra cannot be considered as insult under the Prevention of Insult to National Honors Act.
21. The PW.2 in her cross examination has stated that, she does not know whether any specific action should be taken while registering the case under the prevention of insult to National honors Act, as she was not knowing much about this Act. As per the version of PW.2, the PW.1 gave complaint to their station on 17.08.2014 and Ex.P.4 FIR was registered on 28.08.2014, after the receipt of legal opinion from the law officer of police commissioner's office.
22. Ex.P.8 is the opinion given by the Law officer of prosecution department, office of police commissioner, which is dated as 20.08.2014. According to PW.2, they received legal opinion on 28.08.2014. However Ex.P.8 bears the date of 20.08.2014. The PW.2 being the IO did not mention the reasons as to why there was delay in lodging complaint. Nowhere in Ex.P.8, the Law officer has opined that the inscription or lettering made on the cartoons insult the National flag.
16 C.C.No.21367/2016
23. As per explanation 2 of Sec.2 of Prevention of Insult to National Honour Act, Indian National flag includes any picture, painting, drawing or photograph or other visible representation of the Indian National Flag or of any part or parts thereof, made of any substance or represented on any substance. By drawing cartoons of national flag, making certain comments regarding prevailing political situation thereon and printing it in the news papers, the accused have not disrespected the national flag as contemplated under Sec.2 of the Act.
24. The accused have not burnt, mutilated, defaced, defiled, disfigured, destroyed, trampled upon or otherwise showed disrespect to the Indian National Flag, so as to hold the accused are guilty of the offence. If the PW.1 is felt bad by seeing the cartoons published in Ex.P.2 and 3, it cannot be termed as insult to national flag. It was his opinion. On the basis of his personal opinion, the Court cannot hold that, the accused have insulted Indian National flag.
17 C.C.No.21367/2016
25. In order to hold the accused guilty of the offence, the prosecution has to prove that there was a deliberate act and intention on the part of the accused to insult National Flag. Unless the intention of deliberate insult is proved, no offence is made out under the provision of insult to National Honors act. The object of the act is not to suppress creative freedom and expression of the parties, who have no intention to insult or disrespect the national flag.
26. The accused No.1 being the cartoonist and accused No.2 being the editor printed national flag and written certain words thereon as per Ex.P.2 and 3 to express the prevailing political situation. That cannot be termed as insult to National flag. Therefore, the evidence led by PW.1 and 2 is not helpful to the prosecution to hold the accused guilty of the offence. From their evidence, the charge levelled against the accused is not proved. Thus, the prosecution has failed to prove that, the accused No.1 being the cartoonist and accused No.2 being the editor printed national flag and written certain words thereon on 15.08.2014 at 18 C.C.No.21367/2016 page No.B7 and on 17.08.2014 at page No.8 of Prajavani Kannada daily, published the same and thereby insulted the Indian National flag. In such circumstances, I answer point No.1 in negative.
Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.255[1] of Cr.P.C., the accused No.1 and 2 are acquitted from the charge of Sec.2 Prevention of Insult to National Honor's Act 1971.
The bail bonds executed by the accused No.1 and 2 stands cancelled.
The bonds executed by the accused No.1 and 2 U/Sec.437[A] of Cr.P.C., will be in force till the completion of the appeal period.
TATTANDA Digitally signed by TATTANDA
DAMAYANTI SOMAIAH
DAMAYANTI Date: 2024.07.09 17:52:04
SOMAIAH +0530
09.07.2024 [TATTANDA DAMAYANTI SOMAYYA]
XLI A.C.J.M., BENGALURU
19 C.C.No.21367/2016
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Gopinath PW.2 : Smt.Kathyani Alwa
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Written information/Complaint Ex.P.1[a] : Signature of PW.1 Ex.P.1[b] : Signature of PW.2 Ex.P.2 : News paper dated 15.08.2014 Ex.P.3 : News paper dated 17.08.2014 Ex.P.4 : FIR Ex.P.4[a] : Signature of PW.2 Ex.P.5 : Spot mahazar Ex.P.5[a] : Signature of PW.2 Ex.P.6 : Reply given by the printers[Mysore] Pvt.Ltd., Ex.P.6[a] : Signature of PW.2 Ex.P.7 : Seizure mahazar Ex.P.7[a] : Signature of PW.2 Ex.P.8 : Legal Opinion LIST OF M.O's MARKED FOR THE PROSECUTION: NIL LIST OF WITNESSES EXAMINED FOR THE ACCUSED : NIL 20 C.C.No.21367/2016 LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL ....................................................................................
Dictated on : 09.07.2024
Transcribed on : 09.07.2024
checked on : 09.07.2024
Signed on : 09.07.2024
[TATTANDA DAMAYANTI SOMAYYA]
XLI A.C.J.M., BENGALURU
Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS