1. This is an appeal against the acquittal of the accused respondent Indarsingh of what was alleged by the prosecution to be an offence under Section 153 of the Indian Penal Code.
2. The facts found by the Courts below which we see no reason to doubt, are as follows: There was a flag hoisting ceremony at the Ordnance Factory, Khamaria, On 15-8-1955 when Shri Keshwani, Superintendent, Ordnance Factory, Khamaria, hoisted the National Flag. Indarsingh was present at the said ceremony. There was also a gathering of about 250-300 persons to witness the ceremony. After the ceremony was over and the gathering was about to disperse, the accused respondent came and unfastened the string of the National Flag. The flag came down and the accused-respondent started trampling over it. Deolalikar (P.W. 1) saw this. He immediately went over to the place and rehoisted the flag. He then asked the accused-respondent why he had brought the flag down. The accused-respondent replied that he had already burnt the National Flag some days before and that he had deliberately brought the National Flag down. The accused-respondent also told Subedar Khori (P.W. 4) when he had caught hold of him that he had burnt the National Flag two months back and. why was he hoisting it again, A large crowd enraged because of this insult to the National Flag had gathered round the accused and but for the promptness of Deolalikar (P-W. I) in handing over the accused-respondent to Subedai Khori (P.W. 4) and later to Station Officer, Khamaria, Sonakia (P.W. 3), a serious riot may have occurred and the accused-respondent badly manhandled.
3. The accused-respondent was prosecuted under Sections 153, 504 and 506, I. P. C. He was convicted under Sections 153 and 504, I. P. C. by the trial Court, but the learned Additional Sessions Judge acquitted him of the offence under Section 153, I. P, C. The State Government has filed this appeal againt the acquittal of the accused under Section 153, I. P. C.
4. The accused-respondent denied the whole incident and pleaded that he had been falsely implicated. In our opinion, there is overwhelming evidence of the fact that the incident found established by the Courts below did take place. The evidence of P.W. 1 to P.W. 5 has been believed by the Courts below and we see no reason to doubt that testimony. Nothing has been brought out On record to suggest that these prosecution witnesses would falsely implicate the accused-respondent as being responsible: for the acts attributed to him. The question that arises for consideration in this appeal is whether on these facts the act of the accused in pulling down the National Flag of the Ordnance Factory, Khamaria, and trampling on it, can he said to be punishable under Section 153, I. P. C
5. Section 153, I. P. C. is in the following terms:
'Whoever, malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting foe not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.'
6. The ingredients necessary to establish the offence are :
1. That the accused did an act which was illegal.
2. That he thereby gave provocation to any person.
3. That he did this malignantly or wantonly.
4. That he did this (a) intending that the provocation will cause the offence of rioting to be committed or (b) knowing it to be likely that such provocation will cause the offence of rioting to be committed.
7. Both the Courts below have found the ingredients 2 to 4 well established from the evidence on record. There is ample evidence that the act of the accused gave provocation to the persons present as they all very much resented the insult to the National Flag and the people were rushing to catch and assault him. Further, we are satisfied on the evidence that this was done both malignantly and wantonly. In this context, the word 'malignantly' implies, the doing of a thing with a malice or ill will. Ranade, J., in Queen-Empress v. Kahanji, ILR .18 Bom 758 at p. 775, says that the word implies a sort of general malice. Vide Bayley, J. in BrOmage v. Prosser, (1825) 4 B and C 247 at p. 255 : 107 E R 1051 at p. 1054:
'Malice in common acceptation means ill will against a person but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.'
Whatever connotation of the term be taken, it cannot be denied he had a grouse against the hoisting of the National Flag and his act was a deliberate act for the purpose of insulting the flag, thereby intending to wound the feelings and sentiments of the other persons present. Equally the act done was a wrongful act done without a just cause or excuse. There could be no earthly reason or excuse for the act nor has the accused-respondent offered any. Though the law requires the act to be either malignant or wanton, in Our opinion, the act in the instant case, can also be characterised as a wanton act. According to Ratanlal, on the 'Law of Crimes'
' '.Wantonly' means recklessly, thoughtlessly, without regard for right or consequences. This word gives to the offence contained in this section a tar larger, vaguer, and more comprehensive scope, than would be implied by the word 'malignantly' standing alone.'
8. There can be no doubt that the act of theaccused was thoughtless, arbitrary and irresponsible to the extreme in being heedless of the dangerthat he was unnecessarily inviting by his reprehensible act, accompanied as it was by expressions ofinsolence.
9. As regards the fourth ingredient, there is no evidence of the intent of the accused-respondent but we can certainly infer from the circumstances, that he as an ordinarily reasonable man ought to have known that his act will cause the offence of rioting. We do not doubt that the accused respondent as a man of reasonable intelligence, knew or ought to have known that the National Flag is the sign, symbol or the emblem of the Nation. Speaking of the importance of a flag in the life of a nation, Harlan, J. of the United States Supreme Court delivering the opinion of the Court in Halter v. Nebraska, (1906) 5T Law Ed 696 : 205 US 34, observed:
'It is not, then remarkable that the American people, acting through the legislative branch of the government, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the nation. Indeed, it would have been extraordinary if the government, had started this country upon its marvelous career without giving it a flag to be recognized as the emblem of the American Republic. For that flag every true American has not simply an appreciation, but a deep affection. No American, nor any foreign-born person who enjoys the privileges of American citizenship, overlooks upon it without taking pride in the fact that he lives under this free government. Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.' (Page 701).
* * * * * ''........ to every true American the flag is the symbol of the nation's power'--the emblem of freedom in its truest, best sense. It is not extra' vagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary powers; and absolute safety for free institutions against foreign aggression.' (Page 702).
These remarks apply with equal force to the flag of our Nation.
10. It was also common knowledge that 15th August 1955 was the day of the Independence and the assembly had specially gathered at the Ordinance Factory to honour the flag in commemoration of the Independence Day. As a man of reasonable Intelligence', he ought to have known that any, even the slightest disrespect to the National Flag even Ordinarily, was bound the be resented by any decent-minded citizen. Consequently, 'it is not unreasonable to infer that his malicious and wanton act on this memorable day was hound to provoke the members of the assembly into taking the law into their hands for punishing the miscreant viz., the accused-respondent for his scurrilous deed. One cannot deliberately flout and insult the honour and the sentiment of the Nation and yet complacently hope that the citizens will take it lying down. Every citizen is the ultimate custodian of the Nation's honour and prestige and we have no doubly that a violent instinctive reaction of the people towards the accused-respondent for his malignant and wanton act could not but have been in his reasonable contemplation.
11. The only question Ithat remains for consideration is whether the act of the accused can be said to be an act which was illegal. The connotation of the word 'illegal' is defined in Section 43 of the Indian Penal Code in the following terms :
'The word 'illegal' is applicable to everything which is an offence Or which is prohibited by law, or which furnishes ground for a civil action: .. Its is true that the act was neither an offence as defined in Section 40, I. P. C. nor is it prohibited by law. The teamed Additional Sessions Judge was right so far, but he did not further consider that the word 'illegal' is also applicable to everything which furnishes ground for a civil action. A person is civilly liable for every invasion of another person's legal right committed without lawful justification. As observed in Entick v. Carrington, (1765) 19 St. Tr. 1029 (1066), 'every invasion of private property, be it ever so minute, is a trespass.' In the instant case, there was both trespass to land as well as trespass to goods. Trespass to land is committed by entry on the land of another without lawful authority for which the trespasser is liable without proof of actual damage. Here it may be argued that he had authority given by the Ordnance Factory authorities, Khamaria, to enter the land as an invitee for witnessing the flag hoisting ceremony. But it is, settled law that where one has authority to use another's land for a particular purpose, any user going beyond the authorised user is a trespass : The Six Carpenters' case, (1610) .1 Sni. L. C. 134 : 8 Co. Rep. 146a.
The accused-respondent therefore had authority to go and witness the ceremony but as soon as he started abusing his authority by interfering with the flag staff and creating an unwarranted disturbance, he became liable for trespass to the owners of the land, who could apart from action for damages also forcibly turn him Out, of course, using no more force than was reasonably necessary. Further, in pulling the flag down and trampling on it, he was also guilty of trespass, to the goods for the property in the flag was in the Ordnance Factory authorities and he had forcibly interfered with it while it was in their possession, without just cause or excuse--rather the evidence discloses that, it was done mischievously. The Ordinance Factory authorities had their remedy by recaption which they did by reclaiming the flag from the accused-respondent and then rehoisting it. As observed in Blades v. Higgs, (1865) 11 HLC 621 : 11 ER 1474 :
'When anyone has been unlawfully deprived of his goods, he may lawfully reclaim and take them wherever he happens to find them, but not in a riotous manner or attended with breach of the peace, although he can justify an assault made for the purpose of recapturing after demand and refusal.'
But this does not bar a civil action for damages because 'the remedy given to a person who is disturbed in the possession of his goods is given independently of his right of property in them and is an extension of that protection which the law throws around the person.' Rogers v. Spence, (1844) 13 M and W 571 : 153 ER 239, pointed Out by Underhill on Torts,
'It is ttherefore actionable merely to drive a man's cattle away from a place in which he has lawfully put them, or to scatter the papers on his writing desk about his room, and in 'appropriate cases exemplary damages may be given for such an act, even if no actual injury is caused to the goods. A fortiori it is a trespass deliberately to injure the goods of another by any direct interference with them, such as striking his horse with a whip, beating his dog, Dand v. Sexton, (1789) 3 Term 37, or throwing a stone through the windscreen of his motor car.' (P. 310).
We are therefore of opinion that the act of the accused furnished a good and valid cause for a civil action and consequently his act was one which was illegal within the meaning of Section 153, I.P.C.
12. In this view of the case, the accused-respondent was wrongly acquitted. We therefore set aside the acquittal and convict the accused-respondent under Section 153, I. P. C.
13. As for the sentence, we note that the accused is a young man, who has already lost his job. We further hope that these proceedings which have been going on since August 1955 hava already made him realise the folly of his action. His learned counsel also assures; us that the accused is genuinely sorry for and ashamed of his action. Under the circumstances, we think a fine of Rs. 75/- would meet the ends of justice. We accordingly sentence him to a fine of Rs. 75/- or in default to rigorous imprisonment for two months.