Kerala High Court: While considering a petition under Section 482, Criminal Procedure Code, 1973 (CrPC) seeking quashment of proceedings alleging insult to the Indian National Flag, a Single Judge Bench of A. Badharudeen, J., held that intention to insult National Flag by displaying saffron down is a necessary ingredient of the offence under Clause (l) of Explanation 4 to Section 2, Prevention of Insults to National Honour Act, 1971 (National Honour Act), and in the absence of prosecution materials demonstrating such intention, the proceedings could not be permitted to continue.
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Background
A photograph was circulated through a WhatsApp group depicting the accused holding the Indian National Flag with the saffron colour facing downward. Acting upon information received through a WhatsApp group, the police registered a case alleging commission of an offence punishable under Section 2, National Honour Act. During investigation, statements of several witnesses were recorded, each stating that they had seen the photograph. A final report was thereafter filed before the Magistrate.
The accused contended that the photograph had been taken during the “Har Ghar Tiranga” programme organised for honouring the Indian National Flag. According to him, the photograph was taken at his residence and later shared in a private WhatsApp group. It was argued that the positioning of the Flag with saffron down was purely inadvertent and accidental and that there was no deliberate attempt to insult the National Flag. It was further submitted that Clause (l) of Explanation 4 specifically requires intentional display of the National Flag with saffron down and that no material existed to indicate such intention. The accused also argued that a private WhatsApp group could neither be regarded as a public place nor a place within public view, thereby taking the case outside the scope of Section 2.
The prosecution opposed the petition and contended that the private nature of the WhatsApp group would not by itself take the alleged act outside the purview of the National Honour Act. It was argued that even though the word “intention” was not used in the FIR or in the final report, insult to Indian National Flag was specifically alleged, and therein, the intention necessary to attract the offence under Section 2, National Honour Act is implied.
Analysis
The Court noted that Explanation 3 to Section 2, National Honour Act defines “public place” as any place intended for use by or accessible to the public and includes any public conveyance.
The Court highlighted the distinction between a “public place” and a “place within public view” and noted that “a place within public view” has not been defined in the National Honour Act. The Court observed that the latter expression could be any other place, including a private place, where the presence of, or access by, the public to watch the proceedings was possible. On that basis, the Court held that a private WhatsApp group involving several members could not be excluded from the expression “place within public view”. The Court referred to Binoy Balakrishnan v. State of Kerala, 2026 SCC OnLine Ker 95, wherein the same view was taken.
The Court relied on Mammen Varghese v. State of Kerala, 2024 SCC OnLine Ker 4227, wherein while addressing the allegation as to commission of offence under Section 2, National Honour Act when top side of saffron portion of the National Flag was outlined with a black line along with the picture of the father of the Nation, the Court had quashed the criminal case on finding that the above act would not attract an offence under Section 2.
The Court also referred to V.K. Narayanan v. State of Maharashtra, 2026 SCC OnLine Bom 1438, where a National Flag was hoisted by showing saffron down, but the Court had observed that the accused therein was merely a participant of the flag hoisting ceremony and the prosecution records did not show that the accused therein hoisted or destroyed the Indian National Flag. It was held that no offence under Section 2, National Honour Act was established.
The Court noted that the witnesses merely stated that they felt insulted on seeing the photograph. The Court observed that from the registration of the FIR until filing of the final report, the prosecution allegation was that the accused insulted the Indian National Flag showing the saffron colour facing downward. It was not the case that the accused had intentionally insulted the National Flag by displaying the saffron colour facing downward, though it was submitted that such intention was implied.
The Court noted that the photograph had been taken as part of the “Har Ghar Tiranga” programme, a campaign intended to honour the National Flag. The Court held that the intentional display of the Indian National Flag with the saffron colour down, with the intent to insult the Flag and the Constitution of India, constitutes an offence under Section 2, National Honour Act. However, non-intentional, accidental or mistaken acts of doing the same, without any intention or mens rea to insult the Indian National Flag and the Constitution of India would not attract the offence.
The Court clarified that where intentional display is alleged and borne out by the prosecution materials, the offence would prima facie be attracted.
On the facts of the case, the Court was satisfied that the prosecution materials did not disclose any intention on the part of the accused to insult the National Flag and it was a mistake from his side while displaying the same with the saffron colour down.
Also Read: Intention to insult essential under National Honour Act: Bombay HC
Decision
Accordingly, the Court allowed the petition and quashed all proceedings arising from the crime holding that the essential ingredient of intentional disrespect under Section 2, National Honour Act was absent.
[Mohd. Kasim H.K. v. UT of Lakshadweep, Crl. MC No. 7673 of 2024, decided on 26-9-2026]
Advocates who appeared in this case:
For the Petitioner: Ajit G. Anjarlekar, G.P. Shinod, Govind Padmanaabhan, Atul Mathews and Gayathri S.B., Advocates.
For the Respondents: R.V. Sreejith, Standing Counsel, U.T. Administration of Lakshadweep.