Dwarka Prasad Jat vs State of M.P. and Others

N.K. Gupta, J.—The applicant has preferred the present revision against the order dated 5.1.2012 passed by the learned First Additional Sessions Judge, Nasrullaganj, District Sehore in Criminal revision No. 156/2011 whereby the order dated 17.11.2011 passed by the learned JMFC, Nasrullaganj in Criminal Case No. 520/2011 by which a complaint against the respondents no. 2 to 5 was registered for offence punishable under Sections 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as the "Special Act") was set aside. The facts of the case are that the applicant had lodged a criminal complaint before the JMFC, Nasrullaganj that on 31.3.2010 a function of Nagrik Abhinandan was arranged by the workers of the Bhartiya Janata Party in the honour of the respondent no. 3 Smt. Sushma Swaraj and respondent no. 2 Shri Shivraj Singh Chouhan, Chief Minister of the State and the respondent no. 4 Sandeep Yadav, District Collector of Sehore had also participated in the function arranged by the respondent no. 5 President of Bhartiya Janata Party, Sehore. In the function one girl was modeled as Bharat Mata and she was given a National Flag so that she escorted the respondents no. 2 to 4 from the helipad to the stage but, she held the National Flag in the reverse order. Green color of flag was on the upper side whereas, it was supposed to be on the lower side and therefore, it was an insult of the National Flag.

After considering the evidence adduced by the applicant under Sections 200 and 202 of the Cr.P.C. the learned JMFC, Nasrullaganj registered a case against the respondents no. 2 to 5 for offence punishable u/s 2 of the Special Act but, in criminal revision the learned First Additional Sessions Judge, Nasrullaganj vide the impugned order dated 5.1.2012 reversed the order passed by the JMFC.

I have heard the learned counsel for the parties.

The learned counsel for the applicant has raised mainly two objections. Firstly that the revisionary Court had no right to make an interference in the impugned order passed by the JMFC, Nasrullaganj because the order passed u/s 204 of Cr.P.C. was an order of interlocutory nature. He has placed his reliance upon the judgments passed by Hon''ble the Apex Court in the cases of Subramanium Sethuraman Vs. State of Maharashtra and Another, , Adalat Prasad Vs. Rooplal Jindal and Others, and one order of the single Bench of this Court in the case of Pistabai Vs. Narendra Singh, was referred. It is also submitted that looking to the evidence adduced by the applicant, prima facie an offence u/s 2 of the Special Act was made out against the respondents no. 2 to 5 and therefore, the revisionary Court could not interfere in the order passed by the JMFC.

On the other hand the learned Panel Lawyer for the State has submitted that he has not to say anything on the merits of the case but, the revisionary Court rightly took the cognizance in the order passed by the learned JMFC, Nasrullaganj because it was not an interlocutory order. In this context he has placed reliance on the order passed by the single Bench of this Court in the case of Yashwant Singh and Others Vs. Smt. Sita Singh and Another, and an order passed by Hon''ble the Apex Court in the case of Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another,

After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the judgments passed by Hon''ble the Apex Court in the case of Subramanium Sethuraman (supra) and Adalat Prasad (supra) are related to the judgments of the Criminal Court to review its own order. In the case of Adalat Prasad (supra) Hon''ble the Apex Court did not enter into the question that whether the order passed u/s 204 of the Cr.P.C. was an order of interim nature or not. Under such circumstances, these judgments passed by Hon''ble the Apex Court are not relevant in the present case. In this connection the judgment passed by Hon''ble the Apex Court in the case of Rajendra Kumar Sitaram Pande (supra) is much clear in which Hon''ble the Apex Court has held as under:-

It would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction u/s 397 could be exercised against the same

Such type of view was followed in the order passed by the single Bench of this Court in the case of Yashwant Singh (supra) and therefore, revisional jurisdiction could be exercised u/s 397 of the Cr.P.C. for the order passed u/s 204 of the Cr.P.C. and therefore, the learned Additional Sessions Judge did not commit any error of law in making interference by way of a revision in the order passed by the JMFC, Nasrullaganj.

So far as the facts and evidence of the case is concerned, it was pleaded by the complainant that one girl escorting the respondents no. 2 to 5 in a makeup of Bharat Mata having a National Flag kept in a reverse order. It was no where pleaded in the complaint that any of the respondents garlanded her at the helipad whereas, the prosecution witnesses added such facts which were not pleaded in the complaint. No such photo was produced by the complainant that the respondents garlanded that girl who acted as Bharat Mata. The complainant has filed a poster by which it would be apparent that the function was arranged by the workers of Bhartiya Janata Party and the complainant was worker of opposite political party.

One photo of that girl having the National Flag in reverse order was submitted with the complaint but, it appears that such photograph was taken especially of that girl and possibility cannot be ruled out that the National Flag would have been given to the girl in such a manner at the time of taking the photograph. However, such photograph does not establish either any overt act on the part of respondents no. 2 to 5 or the fact that according to their overt act such type of dishonor of the flag was caused. For consideration of the offence punishable u/s 2 of the Special Act it was for the complainant to establish that such dishonor was done by the respondents no. 2 to 5. It is apparent that the respondents no. 2 and 3 came from Bhopal by a helicopter and they did not know about the arrangement done in the function. The respondent no. 4 was Collector of the District and he was not responsible for arrangement of the function. The respondent no. 5 was President of Bhartiya Janata Party, District Sehore whereas the function was organized by the local unit of Bhartiya Janata Party at Nasrullaganj therefore, it cannot be said against the respondents no. 2 to 5 that they were responsible for arrangement of the function or due to their negligence the girl dishonored the National Flag in such a manner. It is strange that the complainant did not mention the actual culprits to be the proposed accused in his complaint. The girl who was having the National Flag in reverse order was the main culprit who dishonored the National Flag and the organizers who, gave such a reversed flag to the girl were the actual culprits but the complainant did not care to mention that who arranged for such a reverse flag in the function. It appears that the applicant tried to take a political mileage by viewing such a mistake in the function but it was necessary for him to prove the case against the proposed respondents.

It is not at all proved by the complainant that the respondents no. 2 to 5 had an opportunity to notice the girl from the front that she had a reversed flag. The complainant was required to get the information that who was the person responsible in giving that reverse flag to that girl who proceeded in the makeup of Bharat Mata but, it is a sorry state of affairs that the complainant simply blamed the guests of the function who, did not know about the arrangement or who did not even had any opportunity to see that girl and flag from the front side.

Under such circumstances, the complainant failed to prove that any dishonor was caused by the respondents no. 2 to 5 to the National Flag and therefore, the learned JMFC has committed a composite error of law and fact in registering the complainant against the respondents no. 2 to 5. Hence the learned Additional Sessions Judge has rightly set aside the order passed by the learned JMFC, Nasrullaganj in a criminal revision. No illegality or perversity is visible in the detailed order passed by the learned A.S.J. Nasrullaganj. Hence there is no basis by which any interference can be done in the impugned order passed by the revisionary Court.

Consequently the revision filed by the applicant/complainant has no basis. Hence it is hereby dismissed. Copy of the order be sent to the trial Court as well as the revisionary Court along with their records for information.