Allowing his discharge petition, Additional Chief Judicial Magistrate M Manoj held that no case has been made out against Mr Tharoor, which if rebutted, would warrant his conviction. The court also observed that Mr Tharoor had 'not intentionally' prevented singing of the national anthem.
The case was registered against Mr Tharoor, Minister of State for HRD on the basis of a private complaint by Joy Kaitharath stating that Mr Tharoor had committed offences under Sect 3 of Prevention of Insult to National Honour Act, 1977, enacted to prohibit desecration of the national anthem.
According to the complainant, Mr Tharoor had on Dec 16, 2008, interrupted the national anthem at a function of the Federal Bank here and had asked the audience to sing the anthem by placing their right hand on the left side of the chest like the Americans, instead of the attention posture.
Kaitharath had later sought withdrawal of his complaint, which was not allowed by the court.
The court held that though after the commencement of the singing of the national anthem, Mr Tharoor had told the audience to adopt the American posture while singing the anthem and most of the members of the audience and dais had adopted the said posture and sung the anthem.
It was evident that Mr Tharoor did not have 'culpable intention' or mens rea to cause disturbance to the singing of the anthem. In fact, his intention was to appeal to the audience to express their patriotism, the court observed.
"Intention or mens rea is a vital ingredient to the second limb of the section of Prevention of Insults to the National Honour Act', the court said.
"In the said circumstances, even if the case of the complainant is unrebutted, it would not warrant a conviction of the accused as section of 3 of the Prevention of Insults to National Honour Act is not established from the evidence", the judge held.
Pointing that the Mumbai terrorist attack had occurred on November 26, 2008 and the anthem incident had taken place a few days later on December 16, 2008, the court held that by making reference to the patriotism by standing in the said posture, it could be inferred that Mr Tharoor did not have a deliberate intention to cause disturbance to the singing of the national anthem.
The court did not accept the complainant's contention that attention posture was the prescribed posture for singing the national anthem and any deviation from that would be disrespectful to the national anthem was not at all tenable.