Punjab-Haryana High Court Ajitinder Singh vs State Of Punjab And Others on 17 January, 2000Equivalent citations: 2000 CriLJ 1827 Bench: T Chalapathi
1. This application has been filed under Section 482, Criminal Procedure Code. The petitioner is seeking a direction to respondents 1 to 4 to register an FIR against the 5th respondent for the contravention of the Flag Code and Section 5 of the Emblems and Names (Prevention of Improper Use) Act, 1950 and Section 2 of the Prevention of Insults to National Honour Act, 1971 and also for the offence under Sections 415, 417, 420, 170 and 171 of the Indian Penal Code.
2. According to the petitioner, the 5th respondent even before his appointment as Chairman of the Punjab. State Agricultural Marketing Board, used the official car for going from Chandigarh to Bhikhi in District Mansa and to Sardulgarh and Bathinda and these journeys had been undertaken by the 5th respondent on 4th and 5th July, 1997 and he also addressed some public meetings which have been attended by the Sub Divisional Magistrate, Senior Superintendent of Police, Ex. Deputy Speaker and retired Naib Tehsildar and other Akali Dal and B.J.P. workers. Further according to the petitioner, the respondents No. 5 contravened the Flag Code and other provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 is stated above. Therefore the action is to be initiated agaist the 5th respondent.
3. The learned Counsel for the petitioner confined his arguments in regard to the violation of the Flag Code and Section 5 of the Emblems and Names (Prevention of Improper Use) Act, 1950, Section 2 of the Prevention of Insults to National Honour Act, 1971 and for the offences under Sections 170 and 171 of the Indian Penal Code. He fairly conceded that Sections 415, 417 and 420, I.P.C. are not applicable in this case.
4. It is, therefore, to be seen whether the 5th respondent is liable to be prosecuted for any of the offences alleged to have been committed by him on the facts of the case.
5. The first contention of the learned Counsel for the petitioner is that there is violation of Flag Code. To deal with this contention, it deserves to be mentioned that the Flag Code has not been issued under any authority of law. It contains only instructions issued by the Ministry of Home Affairs in regard to the user of the National Flag. It has no statutory force. The instructions as contained in the Flag Code are intended only for the purpose of official display. Any violation of the instructions contained in the Flag Code does not constitute any offence punishable either under Indian Penal Code or any other penal law. Therefore, the contention of the petitioner that the 5th respondent while he was not holding any office, used the vehicle on which the National Flag was flown, is without any force and, therefore, it is rejected.
6. The next contention of the petitioner is that there is also violation of the provisions of the Prevention of Insults to National Honour Act, 1971. Section 2 of the said Act provides as under :- “Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys tramples upon or otherwise 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.”
7. Flying the National Flag on the Government vehicles does not come within any of the categories mentioned in the aforesaid Section nor does it amount to insult to Indian National Flag. The learned Counsel for the petitioner is not able to draw my attention to any of the provisions of law or authority to show that flying the National Flag on the Car used by respondent No. 5, amounts to insult to the National Flag. A reading of Section 2 of the Prevention of Insults to National Honour Act, 1971 does not prohibit flying of the National Flag on the bonnet of the car. Therefore, this contention of the learned Counsel for the petitioner is also rejected.
8. The learned counsel for the petitioner further argued that since the respondent No. 5 used the National Emblem, he has committed the offence under the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950. I am unable to agree with this contention of the learned Counsel for the petitioner. Section 3 of the said Act only prohibits the improper use of Emblems and names. It reads as follows :- “Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government use or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent or any trade mark or design.”
9. I am, therefore, of the view that the provisions of Section 3 of the said Act are not attracted in the case on hand.
10. Learned Counsel for the petitioner further argued that the 5th respondent committed the offences punishable under Sections 170 and 171, I.P.C. To attract Section 170, I.P.C. two ingredients are required; (i) such person who pretends to hold any office as a public servant of falsely impersonating any other person holding such office and (ii) any person in such assumed character does or attempts to do any act under colour of such office.
11. Assuming for a moment that the 5th respondent pretended to hold the office of Chairman, Punjab State Agricultural Marketing Board it is also necessary that there must be an allegation that the 5th respondent acted or attempted to act under the colour of such office. The second ingredient is lacking in the present case.
12. The fact remains that even before the 5th respondent commenced the journey as alleged by the petitioner on 4th and 5th July, 1997, the Governor notified the appointment of the 5th respondent as Chairman of Punjab State Agricultural Marketing Board in the rank of Cabinet Minister in the Notification dated 24-6-1997 though with effect from 19-7-1997 (A.N.). According to the learned Counsel for the petitioner, the said notification appoints the 5th respondent as Chairman only with effect from a future date as he was not the Chairman on 4th and 5th July, 1997 when he performed the aforesaid journeys. Therefore, he is liable to be proceeded against under Section 171, I.P.C.
13. As already observed, there is nothing on records to show that the 5th respondent has done any act under the colour of the office. Mere attending some meetings and addressing general public does not amount to act under the colour of the office. If a person who has been designated as Chairman discusses with somebody like the Sub-Divisional Magistrate or Deputy Commissioner and other people, it does not amount to dealing with the activity of the Marketing Board or with regard to participating in the activity of the Marketing Board. In my view, it does not amount to acting under the colour of the office. May be, having been, appointed as Chairman of the Punjab State Agricultural Marketing Board, the 5th respondent wanted to acquaint himself with the functioning of the Board and also to streamline the functioning after assumption of the office. But it does not amount to offence as envisaged under Section 170, I.P.C. Mere assumption of a character without any attempt to commit any official act is not sufficient to attract Section 170, I.P.C. I am, therefore, of the opinion that Section 170 is not attracted.
14. The learned Counsel for the petitioner also argued that the 5th respondent is liable to be punished for the offence under Section 171, I.P.C. There is no averment in the petition that the 5th respondent has worn any garb or carried any token used by the public servant. Therefore, Section 171 is not attracted.
15. The petitioner is a member of the Legislative Assembly. There is also no dispute that the 5th respondent also contested the general election, but got defeated. This application, in my view, has been filed only to gain political advantage which this Court cannot permit. This application is politically motivated.
16. There is no merit in this Misc. Application and the same is, therefore, dismissed.
17. Application dismissed.