Court’s Decision
The Bombay High Court quashed the criminal proceedings initiated against the petitioner under Sections 354-A(1)(iv), 504, and 509 of the Indian Penal Code as well as Section 67 of the Information Technology Act, 2000. The Court held that a private WhatsApp message sent to a single individual, even if inappropriate, does not constitute an offence under Section 67 of the IT Act, which requires the publication or transmission of obscene material in electronic form to the public. It further observed that “the communication in the present case was a private one, sent to a single recipient,” and therefore, no case was made out under the cited provisions.
Facts
The petitioner and the respondent were known to each other and had been in contact through WhatsApp. On 25 June 2018, the petitioner allegedly sent an offensive WhatsApp message to the respondent. Following this, the respondent lodged a complaint at the Vile Parle Police Station, resulting in the registration of an FIR under multiple provisions of the IPC and the IT Act.
The message in question was not circulated or made public, and no third party was involved in the communication. The petitioner approached the High Court seeking to quash the FIR and subsequent criminal proceedings on the ground that the allegations did not attract the provisions under which he was being prosecuted.
Issues
- Whether a WhatsApp message sent privately to a single person amounts to an offence under Section 67 of the Information Technology Act, 2000.
- Whether the FIR discloses any prima facie offence under Sections 354-A(1)(iv), 504, or 509 of the Indian Penal Code.
- Whether the criminal proceedings deserve to be quashed under Section 482 of the Criminal Procedure Code to prevent abuse of the process of law.
Petitioner’s Arguments
The petitioner contended that even if the WhatsApp message was inappropriate or offensive, it was a private message directed to a single individual and not published or transmitted to the public or a group. Hence, the essential ingredients of Section 67 of the IT Act were not satisfied. Further, the petitioner submitted that the contents of the FIR did not disclose any offence under the IPC provisions invoked and that continuation of the proceedings would amount to abuse of the legal process.
It was also argued that the message, though regrettable, did not have the element of public transmission or publication, which is a necessary ingredient for invoking Section 67. The petitioner further asserted that the complaint appeared to be motivated by personal vendetta and lacked legal substance.
Respondent’s Arguments
The respondent argued that the message received was sexually coloured, caused immense distress, and was intended to insult her modesty and outrage her dignity. It was submitted that the petitioner’s conduct was deliberate and fell within the scope of sexual harassment under Section 354-A(1)(iv), and the contents of the message were sufficiently obscene to attract Section 67 of the IT Act.
The respondent emphasized that the right to dignity and protection from harassment should not be diminished simply because the communication was private. It was further urged that the petitioner’s act amounted to criminal intimidation and insult, thereby attracting Sections 504 and 509 of the IPC.
Analysis of the Law
The High Court examined the scope of Section 67 of the IT Act, which criminalizes the publication or transmission of obscene material in electronic form. The Court referred to established jurisprudence holding that mere private transmission of objectionable content to an individual does not amount to “publication” or “transmission” to the public.
The Court underscored that the language of Section 67 uses the phrase “publishes or transmits,” which implies dissemination beyond a private exchange. The Court reasoned that the essential element of “publication” was missing in this case since the message was sent only to the complainant and was not broadcast or shared publicly.
With respect to Sections 354-A(1)(iv), 504, and 509 of the IPC, the Court observed that the FIR lacked the necessary ingredients to attract these provisions. There was no physical proximity or presence, and the intention to insult the modesty or cause provocation was not sufficiently made out in the FIR.
Precedent Analysis
The Court relied on the following decisions:
- Kamlesh Vaswani v. Union of India, (2016) – where the Supreme Court discussed the meaning of “publication” under Section 67 and emphasized that personal communications fall outside its scope unless transmitted to the public at large.
- Sharat Babu Digumarti v. Government (NCT of Delhi), (2017) 2 SCC 18 – the Supreme Court held that mere possession or transfer of obscene content does not amount to publication or transmission under Section 67 unless it is disseminated to the public.
- Anoop Singh v. State of Uttar Pradesh, (2021) – where the Allahabad High Court quashed criminal proceedings arising from private WhatsApp messages, reiterating that Section 67 applies only to public dissemination.
These precedents reinforced the Court’s conclusion that private communications do not attract criminal liability under Section 67.
Court’s Reasoning
The Court emphasized that the offence under Section 67 cannot be said to have been made out unless the message is made public or is part of a larger act of transmission. It held:
“A one-to-one communication on WhatsApp, however inappropriate, does not constitute ‘publication’ under Section 67 of the Information Technology Act.”
The Court also pointed out that extending the scope of penal provisions to private conversations would open a floodgate of prosecutions and could violate the right to privacy under Article 21 of the Constitution.
The Court further reasoned that there was no physical contact or workplace relation involved, which is often the context for invoking Section 354-A. Similarly, Sections 504 and 509 were found to be inapplicable due to lack of mens rea and absence of insulting conduct within a public or confrontational setting.
Conclusion
The Bombay High Court quashed the FIR and criminal proceedings against the petitioner, holding that no case was made out under either the IPC or the IT Act. The Court exercised its inherent powers under Section 482 CrPC to prevent the abuse of process and to secure the ends of justice. The judgment underscores the importance of distinguishing between private expression and public dissemination when invoking penal laws.
Implications
This judgment clarifies the legal threshold for invoking Section 67 of the IT Act and IPC provisions in the context of private digital communications. It reaffirms the principle that the criminal law must not be used to punish private conduct unless it crosses the threshold of public harm or violation of statutory elements. The judgment is a significant precedent for digital privacy and misuse of legal provisions in personal disputes.
Referred Cases and Their Relevance
- Kamlesh Vaswani v. Union of India – clarified the scope of “publication” under Section 67.
- Sharat Babu Digumarti v. Govt. of NCT of Delhi – laid down that private communications without public dissemination are not punishable under Section 67.
- Anoop Singh v. State of Uttar Pradesh – emphasized that private WhatsApp chats, even if offensive, are not criminal offences unless made public.
FAQs
1. Can a private WhatsApp message be considered an offence under Section 67 of the IT Act?
No. The Court held that a one-to-one private message is not “publication” or “transmission” to the public under Section 67.
2. What is the remedy if an FIR is lodged based on private communication?
One may approach the High Court under Section 482 CrPC to quash the proceedings if no prima facie offence is made out.
3. Are insulting messages on WhatsApp punishable under IPC?
Only if they meet the essential ingredients of the offence—such as public provocation, intent to outrage modesty, or criminal intimidation. Mere private insult may not suffice.
