Court holds that a private WhatsApp group can amount to a place within public view, but prosecution failed to show intentional disrespect to the National Flag.
The Kerala High Court has quashed criminal proceedings against a Lakshadweep resident accused of insulting the Indian National Flag, holding that the prosecution failed to establish any prima facie intent to disrespect the flag.
Justice A. Badharudeen passed the order in a petition filed by Mohammed Kasim H.K., who sought quashing of Crime No. 26 of 2022 and C.C. No. 18 of 2023 pending before the Judicial First Class Magistrate Court, Androth, Lakshadweep.
According to the prosecution, the case began after a WhatsApp message circulated in a private group showed the accused holding the National Flag with the saffron colour facing downward. The police registered the case suo motu under Section 2 of the Prevention of Insults to National Honour Act, 1971, and later filed a final report after recording witness statements.
The petitioner argued that he had participated in the “Har Ghar Tiranga” campaign to express respect for the National Flag, and that the photograph was taken at his residence and forwarded in a private WhatsApp group of BJP members from Lakshadweep. He contended that the flag was shown upside down accidentally and not with any intention to insult the flag. He also argued that a private WhatsApp group could not be treated as a “public place” or a place “within public view” under the Act.
The High Court rejected the argument that a private WhatsApp group is outside the scope of the Act. Referring to the statutory explanation, the Court held that while “public place” has a defined meaning, a “place within public view” may include even a private place if members of the public can access or view the act. On that reasoning, the Court said a private WhatsApp group with many members can qualify as a place within public view.
However, the Court found the prosecution lacking on the crucial issue of intention. It noted that clause (l) of Explanation 4 to Section 2 treats intentionally displaying the National Flag with the saffron side down as disrespect. In this case, the prosecution materials did not show that the accused intentionally displayed the flag in that manner. The Court observed that the accused had participated in a national campaign meant to honour the flag, and the materials suggested a mistaken or accidental display rather than deliberate insult.
The Court relied on earlier decisions, including Mammen Varghese v. State of Kerala and V.K. Narayanan v. State of Maharashtra, to reiterate that mere accidental or non-intentional conduct does not attract liability under the Act. Since the essential ingredient of mens rea was absent, the Court held that continuation of the proceedings would amount to abuse of process.
Accordingly, the High Court allowed the petition and quashed all further proceedings in Crime No. 26 of 2022 and C.C. No. 18 of 2023 against the petitioner.
Bottom Line :
Prevention of Insults to National Honour Act, 1971 - Mere display of photograph of National Flag with saffron colour facing downward in a private WhatsApp group having several members may amount to display in a place within public view, but offence under Section 2 is not made out unless intentional disrespect is alleged and prima facie shown - Accidental or mistaken display without mens rea does not attract Section 2 - Proceedings quashed.
Statutory provision(s): Prevention of Insults to National Honour Act, 1971 Section 2, Explanation 2, Explanation 3, Explanation 4(l), Code of Criminal Procedure, 1973 Section 482
Mohammed Kasim H.K. v. Union Territory of Lakshadweep, (Kerala) : Law Finder Doc id # 2987211
