Srinagar: In a landmark judgment, J&K High Court has ruled that not standing up while the Indian National Anthem is being sung or standing up but not singing it may be disrespect to the National Anthem, but it is not an offence under Prevention of Insult to National Honour Act 1971.
“Interestingly and indisputably, mere disrespect to Indian National Anthem is not an offence per se,” bench of justice Sanjeev Kumar said. “It is only if the conduct of a person amounts to preventing the singing of Indian National Anthem or causing disturbance to any assembly engaged in such singing, it entails penal consequences in terms of Section 3 of the Act.”
The Court ruled that “not standing up while the Indian National Anthem is being sung or standing up but not singing the National Anthem along with members of the assembly engaged in such singing may amount to disrespect to the National Anthem and a failure to adhere to a fundamental duties enumerated in Part IV-A of the Constitution of India but is not an offence as defined under Section 3 of the Act”.
The Court delivered the judgment on a writ petition by Dr Tawseef Ahmad Bhat who had challenged an FIR registered by Police Station, Bani, against him under Section 3 of Prevention of Insult to National Honour Act.
The FIR was registered when Bhat was working as lecturer in Government Degree College, Bani, on contractual basis during 2017-18.
In his plea filed through advocate Mian Abdul Qayoom, Bhat stated that on 29 September, 2018, the College was celebrating surgical strike conducted by Indian Army against the neighbouring country. “On the request of clerk of the College, I stopped the class work and allowed the students to participate in the function and I too joined the students and attended the function,” Bhat said.
Bhat submitted that the function started with the singing of National Anthem and he along with staff was also standing when the National Anthem was being sung.
Bhat submits that while he was taking the examination of B A. 5th Semester, some students came and informed him that a group of students was holding demonstration against him inside the College premises on the ground that he had shown “disrespect” to the National Anthem.
“On the instigation of one Pawan Sharma, Computer Clerk, the demonstrating students approached SDM, Bani, with a written application. The application was forwarded by SDM, Bani, to Police Station, Bani, with a direction to lodge an FIR against the petitioner,” Bhat said in his plea.
He said that it was only on the basis of the directions issued by SDM that the FIR was registered against him and investigation followed. Bhat said he lost his contractual appointment because of registration of the FIR.
Bhat challenged the FIR on the ground that Sub Divisional Magistrate, Bani, who also exercised powers of Executive Magistrate, Class-1, was not competent in law to direct the police to register an FIR, saying it was only the Judicial Magistrate Class-1, who was empowered to issue such directions.
He also contended that the allegations contained in the FIR did not constitute offence under Section 3 of the Act as there was no allegation that he prevented the singing of National Anthem or caused any disturbance to any assembly engaged in such singing.
“The Magistrate empowered under sub-section (3) of Section 156 of the Code to direct the Police to register an FIR and investigate a cognizable case is a Judicial Magistrate and not an Executive Magistrate,” the court said.
“From a perusal of FIR, it clearly transpires that the police registered the FIR not only on the basis of directions of SDM but also took note of the contents of the application. In such circumstances the forwarding of the complaint of the students with his observations by the SDM can be construed as bringing the relevant information relating to commission of cognizable offence to the notice of police for performance of its statutory duty of registration of FIR under Section 154 of the Code,” the court said.
“I am, therefore, of the view that though an Executive Magistrate may not be empowered under Section 156(3) of the Code to direct investigation in the cognizable offence, yet he can bring to the notice of the police the information relating to commission of cognizable offence and direct it to perform its statutory duty,” the court said.
The Court concluded that in the scheme of the Code, an Executive Magistrate is not empowered to direct the police to register an FIR on the basis of a complaint lodged before him but if an information relating to commission of cognizable offence is brought to the notice of an Executive Magistrate, who, after holding an enquiry, finds such commission of offence, he may forward the information to the police for performance of its statutory duty under Section 154 of the Code,” the court said
“From a perusal of impugned FIR, which is based on the written complaint of the students, it clearly transpires that it does not attribute any act to the petitioner which may be tantamounting (sic) to preventing anybody from singing the Indian National Anthem or causing any disturbance to the assembly which was engaged in such singing,” the court said while quashing the FIR against Bhat.
“Failure of the petitioner to participate in the assembly engaged in singing of Indian National Anthem, intentionally or otherwise, and roaming about in the school premises where the assembly was engaged in singing Indian National Anthem, in my opinion, would not amount to either preventing the singing of Indian National Anthem or causing any disturbance to the assembly engaged in such singing,” the court said.
“For the foregoing reasons, I am of the opinion that the contents of FIR, which is based upon a written complaint of the students of the College, do not constitute a cognizable offence and, therefore, registration of FIR and setting the investigating machinery in motion was not called for,” the court said.
“Be that as it is, in these circumstances allowing the investigating machinery to proceed in the matter would be an abuse of process of law. I, therefore, in the exercise of inherent jurisdiction vested in this Court by Section 561-A of Cr.PC Svt. 1989 (now repealed and replaced by Section 482 Cr. P. C., 1973) quash the impugned FIR,” the Court ordered.