Neither the statement
of Deepak Jaysingh nor any material collected by the
prosecution on record indicates that the Applicant
hoisted or displayed the Indian National Flag, or was
involved in its display, on 26.01.2017. Similarly, there is
no material on record to show that any act of the
Applicant was intended to insult or show disrespect to
the honour of the Indian National Flag. To constitute the
offence under Section 2(4) (l), the display of the Indian
National Flag in an inverted manner must be
intentional. Thus, mens rea to cause insult or disrespect,
or to bring the Indian National Flag into contempt,
would be required.
15. Even if the allegations in the FIR and the evidence
collected are accepted as true and correct, it does not
appear that the Applicant displayed the Indian National
Flag with the saffron down, much less that the Applicant
had any such intention. The Applicant’s mere presence
at the place of hoisting of the Flag, as alleged, would not
amount to an offence under Section 2(4) (l) of the
Prevention of Insults to National Honour Act, 1971.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 7 OF 2026
V. K. Narayanan Vs The State of Maharashtra
CORAM : ASHWIN D. BHOBE, J.
DATED : 23rd FEBRUARY, 2026
Citation: 2026:BHC-AS:9262
1. Heard Mr. Rajendra Sorankar, learned Advocate for the
Applicant, and Ms. Pallavi Dabholkar, learned APP for
the Respondent – State.
2. This Application under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, is preferred by the
Applicant for the quashing of FIR No. 13 of 2017, dated
27.01.2017 (“impugned FIR”), registered by the Tilak
Nagar Police Station under Section 2 (4) (l) of the
Prevention of Insults to National Honour Act, 1971, and
the Charge Sheet registered as Criminal Case No. 460 /
PS/ 2017, arising out of the impugned FIR.
3. The material facts of the case are that on Republic Day
in 2017, members of “Shri Rajani Society” gathered at
the building, and a flag-hoisting ceremony was held at
approximately 9:15 a.m. in the presence of Society
members and children. After the ceremony, the Society
members dispersed to attend their work, leaving the
terrace gate open. Around 4:00 p.m. on 26.01.2017, 4 to
5 Police Officers arrived at the Society and reported that
the flag hoisted on the terrace was inverted. A
Pachamama was conducted. The impugned FIR stands
registered against the Applicant and 5 other persons
who were then members of the residential society “Shri
Rajani Society”.
4. Upon investigation, the Respondent filed a charge sheet,
and the proceedings were registered as Case No.
460/PS/2017 and allotted to the Judicial Magistrate
First Class, 34th Court, Vikhroli, Mumbai (“Magistrate”).
5. The charge in Case No. 460/PS/2017 was framed on
12.08.2024. However, the same was quashed and set
aside by the Court of the Sessions for Greater Mumbai,
Branch at Mazgaon, vide Order dated 25.07.2025,
passed in Criminal Revision Application No. 861 of
2024, filed by the Applicant.
6. Mr Rajendra Sonwal, learned Advocate for the
Applicant, submits that the Applicant is now a senior
citizen (89 years of age), immobile and suffering from
age-related ailments. He, therefore, on 22.01.2026, with
the intent to prevent further distress to the Applicant
and in view of the issue involving the National Flag, has
placed on record an unconditional apology.
7. Mr Rajendra Sonwal submits that the FIR and the
charge sheet do not contain the ingredients required to
attract Section 2(4)(l) of the said Act. He submits that
there is no material/evidence to indicate that the
Applicant hoisted the flag, much less that he did so
intentionally in an inverted position. He further submits
that, apart from no case being made out against the
Applicant, there are no independent witnesses to
indicate that the Applicant hoisted the flag in an
inverted position and/or that the flag was hoisted at the
Applicant’s instance, on his instructions, or under his
directions. He submits that the terrace of the society
building does not fall within the domain of “public
space”. He therefore submits that this Application be
allowed.
8. Ms. Pallavi Dabhokar, learned APP for the Respondent,
submits that the offence against the Applicant is made
out. She, by referring to the statement of Deepak
Jaysingh, watchman of Shri Rajani Society, submits that
the offence is made out against the Applicants.
9. Arguments heard. Perused the records with the
assistance of the learned Advocates.
10. Section 2 of the Prevention of Insults to National
Honour Act, 1971 reads as follows:
“ 2. Insults to Indian National Flag and
Constitution of India. —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.
Explanation1.—Comments expressing
disapprobation or criticism of the
Constitution or of the Indian National
Flag or of any measures of the
Government with a view to obtain an
amendment of the Constitution of India
or an alteration of the Indian National
Flag by lawful means do not constitute
an offence under this section.
Explanation 2.—The expression “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.
Explanation 3.—The expression “public
place” means any place intended for use
by, or accessible to, the public and
Includes any public conveyance.
Explanation 4.—The 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 (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 or a speaker's
platform; or
(i) allowing the Indian National Flag to
touch the ground or the floor or trail
in water intentionally; or
(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.”
11. The question of whether the Flag Code is “law” came up
for consideration before the Hon’ble Supreme Court in
the case of Union of India v. Naveen Jindal & Anr.1 The
relevant paragraphs 28, 29, 78 and 90 are reproduced
here:
28. Before we proceed further, it is
necessary to deal with the question,
whether Flag Code is “law”? Flag
Code concededly contains the
executive instructions of the
Central Government. It is stated
1 2004 (2) SCC 510.
that the Ministry of Home Affairs,
which is competent to issue the
instructions contained in the Flag
Code and all matters relating
thereto are one of the items of
business allocated to the said
Ministry by the President under the
Government of India (Allocation of
Business) Rules, 1961 framed in
terms of Article 77 of the
Constitution of India. The question,
however, is as to whether the said
executive instruction is “law”
within the meaning of Article 13 of
the Constitution of India. Article
13(3)(a) of the Constitution of
India reads thus:
“13. (3)(a) ‘law’ includes any
ordinance, order, bye-law, rule,
regulation, notification, custom or
usage having in the territory of
India the force of law;”
29. A bare perusal of the said provision
would clearly go to show that
executive instructions would not
fall within the aforementioned
category. Such executive
instructions may have the force of
law for some other purposes; as for
example those instructions which
are issued as a supplement to the
legislative power in terms of clause
(1) of Article 77 of the Constitution
of India. The necessity as regards
determination of the said question
has arisen as Parliament has not
chosen to enact a statute which
would confer at least a statutory
right upon a citizen of India to fly
the National Flag. An executive
instruction issued by the appellant
herein can any time be replaced by
another set of executive
instructions and thus deprive
Indian citizens from flying National
Flag. Furthermore, such a question
will also arise in the event if it be
held that right to fly the National
Flag is a fundamental or a natural
right within the meaning of Article
19 of the Constitution of India; as
for the purpose of regulating the
exercise of right of freedom
guaranteed under Articles 19(1)(a)
to (e) and (g) a law must be made.
78. Flag Code is not a statute; thereby
the fundamental right under Article
19(1)(a) is not regulated. But the
guidelines as laid down under the
Flag Code deserve to be followed to
the extent it provides for
preservation of dignity and respect
for the National Flag. The right to
fly the National Flag is not an
absolute right. The freedom of
expression for the purpose of giving
a feeling of nationalism and for
that purpose all that is required to
be done is that the duty to respect
the flag must be strictly obeyed.
The pride of a person involved in
flying the flag is the pride to be an
Indian and that, thus, in all
respects respect to it must be
shown. The State may not tolerate
even the slightest disrespect.
90. For the aforesaid reason, we hold
that: (i) 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. (ii) The fundamental
right to fly the National Flag is not
an absolute right but a qualified
one being subject to reasonable
restrictions under clause (2) of
Article 19 of the Constitution of
India. (iii) The Emblems and
Names (Prevention of Improper
Use) Act, 1950 and the Prevention
of Insults to National Honour Act,
1971 regulate the use of the
National Flag. (iv) Flag Code
although is not a law within the
meaning of Article 13(3)(a) of the
Constitution of India for the
purpose of clause (2) of Article 19
thereof, it would not restrictively
regulate the free exercise of the
right of flying the National Flag.
However, the Flag Code to the
extent it provides for preserving
respect and dignity of the National
Flag, the same deserves to be
followed. (v) For the purpose of
interpretation of the constitutional
scheme and for the purpose of
maintaining a balance between the
fundamental/legal rights of a
citizen vis-à-vis, the regulatory
measures/restrictions, both Parts IV
and IV-A of the Constitution of
India can be taken recourse to.
12. In the case at hand, the offence charged is under Section
2(4) (l) of the Prevention of Insults to National Honour
Act, 1971. A person who, in any public place,
intentionally displays the Indian National Flag with the
“saffron” downwards is said to have committed the
offence.
13. FIR merely alleges the Applicant's presence on
26.01.2017 at the time of the flag hoisting.
14. The statement of Deepak Jaysingh, the watchman of the
society, relied upon by the prosecution to prove the
offence and the charge against the Applicant, refers to
the office-bearers of the Shri Rajani society, the society
members, and children being present at the time of
hoisting the flag on 26.01.2017. Neither the statement
of Deepak Jaysingh nor any material collected by the
prosecution on record indicates that the Applicant
hoisted or displayed the Indian National Flag, or was
involved in its display, on 26.01.2017. Similarly, there is
no material on record to show that any act of the
Applicant was intended to insult or show disrespect to
the honour of the Indian National Flag. To constitute the
offence under Section 2(4) (l), the display of the Indian
National Flag in an inverted manner must be
intentional. Thus, mens rea to cause insult or disrespect,
or to bring the Indian National Flag into contempt,
would be required.
15. Even if the allegations in the FIR and the evidence
collected are accepted as true and correct, it does not
appear that the Applicant displayed the Indian National
Flag with the saffron down, much less that the Applicant
had any such intention. The Applicant’s mere presence
at the place of hoisting of the Flag, as alleged, would not
amount to an offence under Section 2(4) (l) of the
Prevention of Insults to National Honour Act, 1971.
16. The order dated 03.07.2017, by which the Magistrate
took cognisance and issued process, is a “rubberstamped
cognisance”. The same is reproduced below:
“The Chargesheet has been filed today by
Tilak Nagar Police Station. Cognizance taken
Issue process against the accused U/Sec २(४)
(ळ) राष्ट्रीय सन्मानाच्या अप्रतिष्ठेस प्रतिबंध अतिधनिनयम
१९७१
Metropolitan Magistrate,
72nd Court, Vikhroli, Mumbai.
17. Perusal of the Order dated 03.07.2017 indicates that no
reasons, even for the namesake, have been assigned by
the Magistrate. The said Order is non-speaking. Taking
cognisance is a judicial act that requires the application
of the mind. The Hon’ble Supreme Court in the case of
Lalankumar Singh & Ors. v. The State of Maharashtra2 in
paragraphs 28 to 30, has observed as follows:
“28. The order of issuance of process is
not an empty formality. The Magistrate
is required to apply his mind as to
whether sufficient ground for
proceeding exists in the case or not. The
formation of such an opinion is required
to be stated in the order itself. The order
is liable to be set aside if no reasons are
given therein while coming to the
conclusion that there is a prima facie
case against the accused. No doubt, that
the order need not contain detailed
reasons. A reference in this respect could
be made to the judgment of this court in
the case of Sunil Bharti Mittal v. Central
Bureau of Investigation, which reads
thus :
"51. On the other hand, section 204
of the Code deals with the issue of
process, if in the opinion of the
Magistrate taking cognizance of an
offence, there is sufficient ground for
proceeding. This section relates to
commencement of a criminal
proceeding. If the Magistrate taking
cognizance of a case (it may be the
Magistrate receiving the complaint
or to whom it has been transferred
under section 192), upon a
consideration of the materials before
him (i. e., the complaint,
2 (2023) 236 Comp Cas 741
examination of the complainant and
his witnesses, if present, or report of
inquiry, if any), thinks that there is a
prima facie case for proceeding in
respect of an offence, he shall issue
process against the accused.
52. A wide discretion has been
given as to grant or refusal of
process and it must be judicially
exercised. A person ought not to be
dragged into court merely because a
complaint has been filed. If a prima
facie case has been made out, the
Magistrate ought to issue process
and it cannot be refused merely
because he thinks that it is unlikely
to result in a conviction.
53. However, the words 'sufficient
ground for proceeding' appearing in
section 204 are of immense
importance. It is these words which
amply suggest that an opinion is to
be formed only after due application
of mind that there is sufficient basis
for proceeding against the said
accused and formation of such an
opinion is to be stated in the order
itself. The order is liable to be set
aside if no reason is given therein
while coming to the conclusion that
there is prima facie case against the
accused, though the order need not
contain detailed reasons. A fortiori,
the order would be bad in law if the
reason given turns out to be ex facie
incorrect."
29. A similar view has been taken by
this court in the case of Ashoke Mal
Bafna v. Upper India Steel
Manufacturing and Engineering Co.
Ltd.
30. In the present case, leaving aside
there being no reasons in support of the
order of the issuance of process, as a
matter of fact, it is clear from the order
of the learned single judge of the High
Court, that there was no such order
passed at all. The learned single judge
of the High Court, based on the record,
has presumed that there was an order
of issuance of process. We find that
such an approach is unsustainable in
law. The appeal therefore deserves to
be allowed.”
18. The order dated 03.07.2017 does not disclose that the
Magistrate considered the material available on record.
The order dated 03.07.2017 is illegal and warrants
interference.
19. The present case squarely falls within the principles laid
down by the Hon’ble Supreme Court in the case of State
of Haryana vs. Bhajan Lal3, for the exercise of powers
under Section 528 of the BNSS to prevent abuse of the
process of law.
20. Accordingly, this Application is allowed in terms of the
prayer clause (A) and (B-1). Consequently, the
impugned FIR bearing No. 13 of 2017, registered at the
Tilak Nagar Police Station, Chembur, Mumbai, the
3
1992 Supp (1) SCC 335
Chargesheet registered as 460/PS/2017 on the file of
the Judicial Magistrate First Class, 34th Court, Vikhroli,
Mumbai, and the order dated 03.07.2017, taking
cognisance, against the Applicant, are quashed.
21. Criminal Application No. 7 of 2026 is allowed. There
shall be no orders as to cost.
[ASHWIN D. BHOBE, J.]
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