Bombay HC Quashes FIR Against 85-Yr-Old For ‘Inverted’ Display Of Indian Flag; Says ‘Intention To Insult’ Essential Under National Honour Act

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.]