ORDER
Anand Byrareddy, J.
1. The petition coming on for preliminary hearing was heard at length.
2. It is contended that it is the misfortune of the petitioner that process is issued against him for the alleged commission of an offence under Section 3 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as 'the Act' for brevity).
3. The facts as are relevant for a consideration of this petition are as follows:
The petitioner is the founder and former Chief Executive Officer of a leading Software Services Company based in Bangalore, known as Infosys. It is said that Infosys has set up a 'Corporate Education Center' at Mysore. Upon learning that Dr. A P J Kalam, the then President of India was scheduled to visit Mysore on April 8, 2007, the petitioner, had invited the President of India to visit the Infosys campus at Mysore, by a letter dated April 6, 2007, which was accepted. For purposes of maintaining protocols, the Deputy Commissioner of Mysore had provided detailed directions to be followed for the President's visit. According to the petitioner the President of India had arrived at the Infosys campus on April 8, 2007 at about 3.30 P.M. There was a rendition of the instrumental version of the National Anthem on his arrival, before he addressed the gathering. After the President of India had addressed the gathering and after the delivery of a vote of thanks, the instrumental version of the National Anthem is said to have been played.
4. It transpires that as a contingent of media personnel were present on the above occasion, a press conference was organized. During the press conference, one of the pressmen is said to have posed a question to the petitioner as to why the National Anthem was not sung vocally, when the President of India arrived at the venue and when he departed from the venue, though the instrumental version of the National Anthem was played. The petitioner is said to have replied that a large majority of those present at the function were foreigners, in order to avoid embarrassment to them, it was decided that the National Anthem would not be sung vocally, even though a choir appointed for the purpose was present. It transpires that the statement of the petitioner to the above effect, sparked off angry debates in the media and elsewhere.
5. A forum known as Karnataka Rakshana Vakeelara Vedike had lodged a complaint before the II Additional Chief Metropolitan Magistrate, Bangalore, as on 3.5.2007 in case No. PCR.7710/2000 alleging that the above statement of the petitioner was an affirmation of an act amounting to an offence under Section 3 of the Act. The Magistrate's Court having taken cognizance of the complaint and process having been issued, the same was challenged by the petitioner before this Court under Section 482 of the Code of Criminal Procedure, 1973. The said petition having been contested, this Court by its order dated 14.8.2007 allowed the petition. This Court has held that the Court of the Magistrate at Bangalore had no territorial jurisdiction to try the offence and that the complaint ought to have been returned for presentation to the proper Court. It was also held that' 'since the Act does not bar playing musical version of the National Anthem, it cannot be said that the petitioner has committed the offence under Section 3 of the Act'. The petition was allowed and the proceedings before the Court of the Magistrate were quashed.
6. The present writ petition is filed in the wake of yet another complaint, dated 8.5.2007 before the Court of the Judicial Magistrate First Class (II Court) at Mysore in PCR. No. 462/2007, by one Shri. H.N. Nanje Gowda, who has alleged that the petitioner has not followed the protocol extended to the President of India, which requires the National Anthem to be sung by the entire gathering, inviting the President of India at the function, as a National honour. Instead the petitioner has willfully prevented the singing of the National Anthem, while only a recorded, instrumental version of the same was played. This act of the petitioner having been affirmed by him at press conference held at the venue, while explaining that this was done not to cause embarrassment to many foreigners who were present in the gathering, amounted to causing insult and exhibiting disrespect and dishonour to the National Anthem. It was alleged that the petitioner had hence, committed an offence under Section 3 of the Act. The Magistrate has by an order dated 22.8.2007, having taken cognizance of the complaint and having directed issuance of summons to the petitioner herein, the present petition is filed. This Court by its Order, dated 18.9.2007, stayed further proceedings in the case registered as C.C. No. 1991/2007, on the file of the JMFC (II Court) Mysore.
7. The writ petition coming on for preliminary hearing, the matter was heard at length, on merits.
8. Shri K K Venugopal, Senior Advocate, appearing for the Counsel for the petitioner urged the following contentions:
a) This Court's Order dated 14.8.2007 passed in Criminal Petition 2069/2007 having been widely publicized by both the print and electronic media, it is difficult to accept that the respondent complainant and the learned Magistrate were unaware of the same, wherein it has been declared that no offence has been committed by the petitioner in the face of the circumstances averred which relate to the same incident which is the subject matter of the present complaint. It is hence contended that the entertainment and prosecution of the complaint is a gross abuse of process of Court and is in total disobedience of the order passed by this Court.
b) That it is the apprehension of the petitioner, having regard to the entertainment of the present complaint, for extraneous reasons and collateral considerations and in total abuse of the process of the Criminal Court further such complaints are likely to be filed against the petitioner, with the sole object of causing damage to his reputation.
c) The protocol governing the visit of the President of India, which is governed by the guidelines issued by the President's Secretariat, does not indicate the manner in which the National Anthem is to be rendered viz., live or recorded, vocal or instrumental. Neither is the same prescribed under any statute or rule.
d) Even if the allegation that only the instrumental version of the National Anthem was played, is taken to be true it would not attract Section 3 of the Act. To attract the same, a person has to intentionally prevent the singing of the National Anthem or cause disturbance to any assembly engaged in such singing. There is no allegation in the complaint to this effect.
e) The allegation that the petitioner had caused insult to the National Anthem is misconceived. Section 2 of the Act deals only with 'insult to the Indian National Flag and the Constitution of India'. Section 3 on the other hand deals with the prevention of singing of the National Anthem, does not refer to insults to the National Anthem.
f) A Statement made at a press interview even if accepted as correctly quoted cannot constitute an offence under Section 3 of the Act.
g) There is no allegation in the complaint of the actus reus or culpable act of preventing the singing of the National Anthem or causing disturbance to any assembly by word or deed. That the entire allegations in the complaint even if assumed to be true would not constitute an offence under the provisions of the Act.
h) There was no act committed by the petitioner, by word or deed in preventing the audience at the venue from singing the National Anthem, which is the only relevant issue, to constitute the alleged offence. The statement allegedly made by the petitioner at a press conference later, only indicated his thought process, not known to the audience, and in no way was the audience prevented from singing.
i) In the petitioner having admittedly directed the Choir, which was present on the occasion, not to sing vocally is a choice that was available to the petitioner, as the Choir is his own and engaged by him. If an instrumental rendering of the National Anthem is valid, there is no offence committed.
j) Orders relating to the National Anthem nor the instructions issued in respect of the singing of the National Anthem do not form part of the Act and reliance cannot be placed on the same for establishing the commission of an offence under Section 3 of the Act.
9. Shri. Venugopal elaborated on the above contentions and placed reliance on the following authorities in support of his case.
- Bijoe Emmanuel v. State of Kerala : 1986CriLJ1736 ,
- State of Haryana v. Bhajan Lal (1992) Supp. 1 SCC 335, at Page 378 (Para 102),
- R.P. Kapur v. State of Punjab : 1960CriLJ1239 ,
- Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda : 1970CriLJ1132 ,
- Vijaya Rao v. State of Rajasthan (2005) 7 SCC 69, at Page 69 (Para 5),
- Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi : 1997CriLJ212 ,
- State of Orissa v. Debendra Nath Padhi : AIR2005SC359 ,
- Pepsi Food Ltd. v. Special Judicial Magistrate and Ors. : 1998CriLJ1 .
10. Per contra, the Counsel for the respondent contended as follows:
a) That the writ petition is misconceived and is not maintainable under Article 226 and 227 of the Constitution of India. The learned Magistrate having been satisfied on the ingredients of the complaint and the material produced in evidence in support of the same has thought it fit to issue process in accordance with law. Even if the petitioner can be said to be aggrieved by the impugned order, the petitioner being provided with adequate alternative remedy under the Code of Criminal Procedure, there is no warrant for interference by this Court.
b) The contentions of the petitioner on facts, are disputed by the respondent, especially as regards the contention of even a musical version of the National Anthem being played before the President of India's departure from the venue of the petitioner's function.
c) The finding of the Magistrate that CW - 3 had tendered evidence to the effect that the National Anthem was not sung or even an instrumental version not being rendered at the time of departure of the President, coupled with the public apology of the petitioner for a breach of protocol would clearly demonstrate the possible commission of an offence under Section 3 of the Act.
d) Even if the petitioner seeks to contend that there is no material to demonstrate the commission of an offence based on the complaint, it is for the Trial Court to decide the question and the petitioner is not entitled to short-circuit the procedure by recourse to this petition. The allegations of mala fides or extraneous considerations attributed to the respondent are unfair and baseless.
e) The order of this Court in Criminal Petition 2069/2007 was allowed on the ground of jurisdiction. This Court's opinion therein as to the musical rendition of the National Anthem not being an offence does not preclude a Court having jurisdiction from entertaining a complaint relating to the offence on the basis of material evidence in support thereof.
11. The Counsel for the respondent seeks to place reliance on the following authorities:
- Ghan Shyam Das Gupta and Anr. v. Ananth Kumar Sinha and Ors. : AIR1991SC2251
- Seth Chand Rathan v. Pandit Durga Prasad (D) by Legal Representatives and Ors. : [2003]3SCR75
- The Assistant Collector of Central Excise v. Jaison Hosiery Industries : 1979(4)ELT511(SC)
- State of Orissa v. Ramachandra Dev and Anr. : AIR1964SC685
- State of Andhra Pradesh and Ors. v. Chitta Venkata Rao : (1976)ILLJ21SC
- S. Jagadishan v. Ayyanadar : (1983)IILLJ190SC
- Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. : AIR1999SC22
- Krashnakumar Balakaram Pande, Baroda v. Municipal Corporation of the City of Baroda and Anr. : AIR1990Guj20
- Punia Biswal v. Divisional Forest Officer, Rairakhol and Ors. : AIR1990Ori219 .
- Mrs. Khorshed Aga and Ors. v. State of Maharashtra and Ors. : AIR1992Bom427
- Institute of Social Welfare v. State of Kerala and Ors. : AIR1997Ker45
- Jhansi Concrete Products, Jhansi and Ors. v. State of U.P. and Anr. : AIR1990All53
- Balaswamy and Ors. v. Government of A.P. and Ors. : AIR1990AP135
- Master Zubeen v. Principal Judge Family Court Lucknow and Ors. : AIR1994All147
12. The petitioner seeks appropriate orders of this Court to quash the Order dated 22.8.2007, directing the registering of the Criminal Case in C.C. No. 1991/2007 by the JMFC (II Court) Mysore in PCR. No. 462/2007 and to quash the complaint itself. The petitioner further seeks a direction to all the sub-ordinate Courts in the State of Karnataka not to entertain any complaint against the petitioner for the alleged offence under Section 3 of the Act.
13. As stated hereinabove, this Court had addressed a complaint relating to the very incident alleging the commission of an offence under Section 3 of the Act- while dealing with the Criminal Petition No. 2069/2007 challenging the order of the II Additional Chief Metropolitan Magistrate, Bangalore in PCR. No. 7710/2007 and to quash the complaint therein. This Court having allowed the petition and holding that the petitioner had not committed an offence under Section 3 of the Act, a question arises as to whether the proceedings now under challenge can be sustained notwithstanding, the order of this Court in the above Criminal petition having become final. It is to be seen that in terms of Section 300 of the Code of Criminal Procedure, 1973 a person once convicted or acquitted by a Court of competent jurisdiction shall not be liable to be tried again for the same offence, nor on the same facts for any other offence. But the dismissal of a complaint or the discharge of the accused is not acquittal for the purposes of the above Section. It also does not bar fresh proceedings by the same magistrate or a magistrate of co-ordinate jurisdiction against the accused on the same offence even without an order for fresh enquiry under Section 398 of the Code of Criminal Procedure. This does not result in the Court of the magistrate acting in disobedience to the order of this Court nor does it result in an abuse of process especially when a complainant who is different from the earlier complainant approaches the Court, possibly with better material evidence or fresh material.
14. Another question that is of preliminary significance in the present petition is whether this Court can entertain this petition, when the petitioner is provided with other alternative remedies in law. This question is answered by the Apex Court in Pepsi Foods Limited v. Special Judicial Magistrate : 1998CriLJ1 - The Supreme Court has held that notwithstanding the fact that a magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, it does not mean that the accused cannot approach the High Court under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution to have the proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. Further, the Supreme Court has in the case of Indian Oil Corporation v. NEPC India Limited : AIR2006SC2780 reiterated the principles relating to exercise of jurisdiction to quash complaints and criminal proceedings, while placing reliance on the following decisions:
a) Madhavrao Jiwajirao Schindia v. Sambhajirao Angre : 1988CriLJ853 ; State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 1059; Central Bureau of Investigation v. Duncans Agro Industries Ltd. : 1996CriLJ3501 ; State of Bihar v. Rajendra Agrawalla : 1996CriLJ1372 ; Rajesh Bajaj v. State NCT of Delhi : (1993)IILLJ696SC ; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. (2000) 3
b) SCC 269 : 2000 SCC (Cri) 615; Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 : 2000 SCC (Cri) 786; M. Krishnan v. Vrjay Singh : 2001CriLJ4705 ; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque : 2005CriLJ92 , relied on
i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do no prima facie constitute any offence or make out the case alleged against the accused
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint.
ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceedings is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) etc., etc....
15. Coming now to the merits of the case on hand, the complaint alleges an offence under Section 3 of the Act, which reads as follows:
3. Prevention of singing of National Anthem. Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.
16. It is alleged that the petitioner had intentionally avoided the singing of the National Anthem at a function organized by the petitioner to honour The President of India. This was admitted by the petitioner and the reason assigned was that it was to avoid embarrassment to foreigners present in the assembly. This according to the complainant amounted to 'causing insult and exhibiting dishonour to the National honour'. It is urged that pursuant to newspaper reports of the incident, an apology was extended by the petitioner on the following day for the offence committed and therefore there is prima facie material to initiate action against the petitioner. It is contended that under Schedule II of the Code of Criminal Procedure, an offence under Section 3 of the Act is cognizable and non-bailable. The complainant had accordingly lodged a written complaint with the jurisdictional police - but since no complaint was registered inspite of the complainant's efforts - in pursuing the same - the complainant had filed the complaint under Section 190 of the Code of Criminal Procedure. The complainant's sworn statement having been recorded as well as that of his witnesses, the magistrate has opined that:
Even though the playing of the National Anthem by way of musical instrument is not an offence, the non-playing or not singing of the National Anthem at the time of departure of the Hon'ble President of India is an offence and it attracts an offence under Section 3 of the Prevention of Insults to National Honour Act.
17. From a close reading of the entire complaint, the sworn statement of the complainant and his witnesses, it is to be noticed that there is no allegation that the petitioner prevented the persons assembled at the function from singing the National Anthem or that he caused any disturbance to the assembly engaged in such singing. The various newspaper reports of the incident do not also disclose any such misdemeanour. A query by a news reporter as to why there was no vocal rendition of the National Anthem during the President's visit having been met by the petitioner with an explanation that it was in order to avoid embarrassment to a large number of foreigners present in the gathering is sought to be interpreted as being an 'extra judicial confession' of the commission of an offence. This is the crux of the matter.
18. The function organised by the petitioner was a private function at his own premises. The President of India being the Chief Guest, the petitioner was required to follow the protocol that is mandatory at any place visited by the President of India. The media personnel had trailed the President of India and his entourage to the venue - Their entry was not, however prevented. Even if there was a programme which envisaged a Choir, which was present, to sing the National Anthem upon the President of India arriving at the venue and upon his departure, the petitioner had made a choice to have a rendition of the instrumental version of the National Anthem both on the President's arrival and at the time of his departure; Or even if no such music was played (as is sought to be inconsistently alleged), it amounted to a breach of protocol and certainly did not amount to an offence by the petitioner. The petitioner's direction to his own Choir not to sing the National Anthem was not a direction to the audience - The assembly was not prevented from singing the National Anthem - nor is there any allegation of the petitioner seeking to cause disturbance to the assembly engaged in such singing. The circumstance that a reporter had sought clarification as to why the National Anthem was not sung would itself disclose there was no apparent act by the petitioner to prevent the assembly to sing the National Anthem. The petitioner's reported reply, which according to him is a misquote, has rankled the complainant and others as well, as is seen from the spate of news paper reports and coverage by the electronic media, that followed. However, the so called admission by the petitioner may have resulted in the petitioner committing a faux pas but certainly cannot be construed as an affirmation of an act amounting to an offence under Section 3 of the Act.
19. The finding of the trial Court, on a possible breach of protocol in not singing the National Anthem during the President's visit even if assumed to be true, as constituting an offence under Section 3 of the Act cannot be sustained. The instructions issued by the President's Secretariat or the Orders relating to the National Anthem of India cannot be read as part of the Act. The entire episode is an unintended controversy brought about by a curious press reporter rather than any want of patriotism, or disrespect for the National Anthem, on the part of the petitioner or prompted by any overt act by him constituting an offence under the Act.
20. Hence, the writ petition is allowed. The order dated 22.8.2007 in PCR. No. 402/2007 registering case No. CC. 1991/2007 passed by the JMFC (II Court) Mysore is quashed. Further, the complaint in PCR. No. 462/2007 also stands quashed. It is however, not felt necessary to issue any general direction to all sub-ordinate Courts in the State of Karnataka not to entertain any complaint against the petitioner for the alleged offence committed on 08.4.2007, as prayed for.