Nisha Gupta, J. - (1.) This Misc. Petition under Section 482 Criminal Procedure Code has been filed against the order dated 1.9.2006 passed by Additional Chief Judicial Magistrate No.4, Jaipur City, Jaipur in complaint No. 1592/2006 whereby cognizance has been taken against the present petitioners for the offence under Section 2 of the Prevention of Insults to National Honour Act, 1971 (in short the Act of 1971) and Section 107, 114, 341, 323 and 504 IPC.
(2.) The relevant facts of the case narrated in the petition are that a complaint has been filed against the present petitioners for the above offence wherein it has been stated that the present petitioners and others have obstructed the complainant to hoist the flag at SMS Stadium whereas on 11.8.2006, the complainant represented before the Governor and Chief Minister for hoisting the flag at SMS Stadium, Jaipur whereas petitioner No.3 has accorded oral sanction for hoisting the flag and on 14.8.2006, the social workers have inspected the Stadium and official permission has been granted to them. On 15.8.2006 at 10.00 AM when they were going to hoist the flag peacefully, present petitioners and other police party obstructed them, companion of petitioner No.1 and petitioner No.2 himself had caught hold of the complainant by neck and they gave beating to the present petitioners and also allowed the national flag to touch the ground and even one police personnel has put his left shoe on the flag thus, they have dishonoured the national flag. The complainant has also stated the incident to present petitioner No. 1 who was present there but he also used filthy language. On this after recording the statement of complainant, cognizance against the present petitioners has been taken which has been challenged by way of this petition.
(3.) The contention of the present petitioners is that no offence has been committed by the present petitioners. The bare reading of the complaint and the statements recorded in pursuance of the complaint under Section 200 Criminal Procedure Code, there is no allegation which can attract the ingredient of Section 2 of the Act of 1971, there was no mens rea or intention on the part of the accused petitioners to commit the offence. Admittedly, order under Section 144 Criminal Procedure Code was in operation and complainant and huge crowd entered forcibly in the Government premises and present petitioners were there to restrain them and their duty as police officer was that nobody should take the law in their hands and they were only stopping the complainant and other persons from entering in the premises, they were violating the law and to put pressure, this false complaint has been filed against the present petitioners. His further contention is that admittedly, present petitioners are public servants and they were discharging their official duties at the relevant time but no sanction under Section 197 Cr.RC. has been obtained against the present petitioners. There is no averment in the complaint or in the statement of the complainant that the present petitioners have in any way showed disrespect to the national flag or they have misbehaved with the complainant and the allegations are against the executive and police authorities who were deputed there for keeping law and order hence the cognizance be quashed against the present petitioners. Per contra, the contention of the counsel for the complainant is that the impugned order is revisable and when alternative remedy is available petition under Section 482 Cr.RC., is not maintainable, defence of the present petitioners could not be looked into at the time of taking cognizance and provisions of Section 197 Cr.RC. could not be attracted as showing disrespect to the flag cannot be termed as an official duty of the present petitioners and they cannot be protected under the garb of provisions of Section 197 Cr.RC., specific allegations have been lodged against the present petitioners, hence cognizance has rightly been taken against the present petitioners and there is no infirmity in the impugned order.;