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Jammu and Kashmir High Court on Friday quashed an F.I.R. which alleged that the accused disrespected the Indian National Anthem by non-participation in the assembly gathered to sing it giving rise to an offence under Section 3 of Prevention of Insult to National Honour Act, 1971 (the Act).

 

The single bench of the High Court comprising Justice Sanjeev Kumar held,

“Section 3 of the Act (National Honour Act, 1971)……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.

…..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 accused in his petition before the court stated that he was working as Lecturer in Government Degree College on contractual basis. On 29th of September, 2018, during singing at the beginning of Indian Army’s surgical strike against the neighbouring country celebrations in the College, it was alleged that the petitioner did not participate in it and caused dishonor to the National Anthem.

A while later, few student of the college held a protest against the petitioner on the college premises and a written application was submitted before the Sub Divisional Magistrate (SDM) of the area for the same act of the petitioner. Then, the application was forwarded by the SDM to Police Station with a direction to lodge an FIR against the petitioner.

The petitioner, as is claimed by him, lost his contractual appointment because of registration of aforesaid FIR and was discharged from service.

Aggrieved with the registration of the FIR the petitioner brought a petition before the J & K High Court, contending that a SDM 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 (Cr.P.C.).

The petitioner also argued in his petition that the allegations contained in the FIR, if taken to be true on their face value, do not constitute offence under Section 3 of the Act. There is no allegation that the petitioner prevented the singing of National Anthem or caused any disturbance to any assembly engaged in such singing.

After contemplating over both the contentions of the petitioner, the court affirmed that the Executive magistrate is empowered to direct for registration of a FIR but only after holding an inquiry and finding commission of such offence.

About the other contention presented by the petitioner, 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. Interestingly and indisputably, mere disrespect to Indian National Anthem is not an offence per se.”

Observing that the petitioner has already paid the price by losing his contractual job for not adhering to his Fundamental duty to respect the National Anthem, the single bench quashed the impugned FIR in exercise of its inherent jurisdiction under Section 432 of Cr.P.C.