IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7211 of 2008()
1. M.N. RAVI VARMA, PRINTER & PUBLISHED
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PP
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :27/11/2008
O R D E R
K. HEMA, J.
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B.A. No. 7211 of 2008
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Dated this the 27th day of November,2008
O R D E R
Petition for anticipatory bail.
2. The alleged offence is under sections 509 IPC and 2(b)
and 2(e) of the Prevention of Insults to National Honour
(Amendment) Act, 2003. According to prosecution, a photograph
of a woman appeared in the Mathrhubhumi daily dated 15-8-
2008, in which a woman was wearing an apparel having tri-colour
of Indian National Flag and a complaint was filed that the
advertisement was caused to be published by a jewellery through
a advertising agency and all of them have committed the
offences by use of the portion of the National Flag.
3. Petitioner is the 2nd accused who is the printer and
publisher of Mathrubhumi daily. Learned counsel for petitioner
submitted that petitioner is not liable for the advertisement
published in the newspaper because there is another person in
the establishment who is dealing with this section. Petitioner is
not a person who is responsible for receiving and selecting the
advertisement to be published in the newspaper. It is also
submitted that the alleged offences are not attracted in this case
and that co-accused were granted anticipatory bail by this Court
as per order dated in B.A. Nos.6697 and 6710/2008. Therefore,
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anticipatory bail may be granted to petitioner also, it is
submitted.
4. This petition is strongly opposed. Learned Public
Prosecutor submitted that the expression, ‘Indian National Flag’
is defined in Explanation-2 to Section 2 of the Prevention of
Insults to National Honour Act, 1971. The ‘Indian National Flag’
includes any visible representation of the Indian National Flag or
of any part or parts thereof, made of any substance or
represented on any substance. Any painting, drawing or
photograph also would include the Indian National Flag and it is
not necessary that the Flag as a whole is used to attract the
offence, it is submitted. My attention was also drawn to
Explanation-4 in Section 2, particularly sub-clause (e) which
shows that the disrespect to the Indian National Flag means and
includes use of the National Flag as a portion of costume below
the waist or by embroidering or printing it on cushions,
handkerchiefs, undergarments or any dress material. It is also
submitted that the provision in the Code of India also has to be
read in this context and it is clear that offence under the
Prevention of Insults to National Honour Act is clearly attracted.
5. It was submitted in B.A.nos.6697 and 6710 of 2008 that
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the three colours were used not on any dress material or dress
or undergarment. It was used in a picture which is published in
an advertisement. Such use of the colours of Indian National
Flag will not come under Explanation-4(e)(ii), it is submitted. As
per the advertisement published in the paper which is subject
matter of this case, it is only made to appear that the colours of
the Indian National Flag are used on a dress material which the
woman had worn but, the colours were not used by petitioners
on any dress material. Those were used for printing an
advertisement, it is submitted.
6. On hearing both sides, I am satisfied that there is a
strong arguable case for both sides. But, if anticipatory bail is
refused, it is likely that petitioners will suffer irreparable injury
and loss, if ultimately a finding is entered, in favour of
petitioners. Hence, I am persuaded to grant anticipatory bail to
petitioners and the following order is passed:-
1) Petitioner shall surrender before the
investigating officer within seven days from
today and in the event of his arrest, he shall be
released on bail on his executing bond for
Rs.25,000/- with two solvent sureties each for
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the like sum to the satisfaction of the arresting
officer, on the following conditions:
i) Petitioner shall not tamper with evidence
or commit any offence.
ii) Until an order is passed on merit on the
disputed issue, no advertisement, which
is the subject matter of this petition,
shall be published.
Petition is allowed.
K.HEMA, JUDGE.
mn.