ere disrespect to Indian National Anthem is not an offence Prevention of Insult to National Honour Act, 1971 (Act) unless the conduct of such person amounts to preventing the singing of Indian National Anthem or causing disturbance to any assembly engaged in such singing, the Jammu & Kashmir High Court held (Dr. Tawseef Ahmad Bhat v. State of Jammu & Kashmir), reported Bar and Bench.
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 IVA of the Constitution of India but is not an offence as defined under Section 3 of the Act, the Court held.
“From a bare reading of Section 3, it is crystal clear that it is intentional preventing of the singing of the Indian National Anthem or causing disturbance to any assembly engaged in such singing that is made punishable with imprisonment up to three years, or with fine, or with both,” the Court as per Bar and Bench ruled.
Single-judge Justice Sanjeev Kumar, therefore, quashed the First Information Report (FIR) registered under Section 3 of Act against a contractual based lecturer, Dr. Tawseef Ahmad Bhat at Government Degree College, Bani.
By way of background, the college where the petitioner was employed, was was celebrating the surgical strike conducted by Indian Army against the neighbouring Country.
As per the claim of the petitioner, on the request of clerk of the college, the petitioner stopped the class work and allowed students to participate in the function.
The petitioner claimed that he too joined the students and attended the function. The function started with the singing of National Anthem. The petitioner submitted that he along with staff was also standing when the National Anthem was being sung.
The petitioner submitted that while he was taking the examination of BA 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, a computer clerk, the demonstrating students approached Sub-Divisional Magistrate (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.
It was submitted that FIR was registered and investigation set in motion only on the basis of the directions issued by SDM.
The contention of the petition was two fold:
First, the allegations contained in the FIR, even if taken to be true on their face value, do not constitute an offence under Section 3 of the Act. This, it was submitted, was because there was no allegation that the petitioner prevented the singing of National Anthem or caused any disturbance to any assembly engaged in such singing.
Second, SDM, Bani, who also exercises powers of Executive Magistrate, Class-1, is not competent in law to direct the police to register an FIR. It is only the Judicial Magistrate Class-1, who is empowered to issue such directions in terms of Section 156(3) of the Code of Criminal Procedure (CrPC).
In answering the first contention, the Court referred to Section 3 of the Act.
The Court noted that as per Section 3, 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.
“Only two type of conduct exhibited by a person or persons in relation to National Anthem is penalised under Section 3 of the Act. It is the conduct that prevents singing of the National Anthem or that causes disturbance in the assembly engaged in such singing, that is declared as an offence under Section 3 of the Act and punishable,” the judgment said.
The Court at this juncture also noted that a private bill was introduced by an MP, Parvesh Sahib Singh in the Lok Sabha which proposed to amend Section 3. By the same, not standing up while National Anthem is played was proposed to be made an offence under Section 3.
However, the bill did not pass muster, the Court noted.
Thus, Section 3 as it stands on date does not make “disrespect” to the Indian National Anthem an offence unless it has the effect of preventing the signing of National Anthem or disturbing the assembly engaged in such signing, the Court reiterated.
In the present FIR, there was no such conduct on the part of the petitioner, the Court as per Bar and Bench said.
“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 judge ruled.
The observations made by SDM, Bani, that on enquiry he found that the petitioner had intentionally caused disturbance in the assembly engaged in signing National Anthem is clearly an afterthought and was not part of the complaint made before him by the students nor is such observation supported by any material particulars, the judge added.
Regarding the second contention, the Court made it clear that the Magistrate empowered under sub-section (3) of Section 156 of the Code of Criminal Procedure to direct the Police to register an FIR and investigate a cognizable case is a Judicial Magistrate and not an Executive Magistrate.
“A conjoint reading of Section 154 and 156 would clearly show that power to direct investigation in a cognizable case, would necessarily include the power to direct the police to register an FIR. Section 156(3) confers such power upon ‘the Magistrate’ empowered under section 190 of the code to take cognizance,” the judgment stated.
It is thus evident that 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, it added.
The, Court, therefore, quashed the FIR stating that it is based upon a written complaint of the college students and the contents of it do not constitute a cognizable offence.