WhatsApp Group Administrator is not vicariously liable for member’s offensive messages unless common intention is displayed: Bombay High Court

 on 22 04 2021 on 23 04 1 13APL 573.16NO. 573 OF 2016APPLICANT : Kishor S o Chintaman Tarone Agedabout 33 years R o Sawar Tola TahsilArjuni Morgaon District Gondia. ...VERSUS...NON APPLICANTS : 1.The State of Maharashtra ThroughP.S.O. P. S. Arjuni Morgaon District Gondia.2.Mrs.Rachanatai W o ChameshwarjiGahane Aged about 41 years R o Siregaon Bandh Post Sangadi TahsilArjuni Morgaon District Gondia. Mr.R.M.Daga Advocate for the applicant.Mr.T.A.Mirza A.P. P. for the non applicant No.1.Mr. Sanjay A. Bramhe Advocate for the non applicant No.2. CORAM : Z.A.HAQ AND AMIT B. BORKAR JJ. DATED : 01.03.2021.ORAL JUDGMENT :509 and 107 of theIndian Penal Code and section 67 of the Information Technology Act 2000 and also proceedings bearing Regular Criminal Case No.177 of2016. 4. The First Information Report came to be registered againstthe applicant and another with the accusations that the applicant(Accused No. 2) is an administrator of a Whatsapp group that accusedNo.1 used filthy language against the non applicant No.2 on theWhatsapp group of which applicant is an administrator that despiteaccused No.1 using filthy language against the non applicant No.2 theapplicant had not taken any action against the accused No.1. It isalleged that the applicant being administrator had not removed nordeleted accused No.1 from the Whatsapp group. It is further allegedthat the applicant had not asked accused No.1 to submit apology to thenon applicant No.2 on the contrary the applicant expressed hishelplessness. The non applicant No.2 therefore lodged FirstKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 3 13APL 573.16509 and 107 of the Indian Penal Code and section 67 of theInformation Technology Act 2000. To adjudicate the said issue it isnecessary to understand functioning of Whatsapp messaging service.Whatsapp is an instant messaging platform which can be used for mass communication by opting to create a chat group. A chat group is afeature on Whatsapp which allows joint participation of members of thechat group. Group Administrators as they are generally called are theones who create the group by adding or deleting the members to thesame. Every chat group has one or more group administrators whocontrol participation of members of the group by deleting or addingmembers of the group. A group administrator has limited power ofremoving a member of the group or adding other members of thegroup. Once the group is created the functioning of the administratorand that of the members is at par with each other except the power ofadding or deleting members to the group. The Administrator of aKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 5 13APL 573.16of the Indian Penal Code to understand what are the criteria forconstitution of the offence alleged against the applicant which reads asunder:KHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 6 13APL 573.16A man committing any of thefollowing acts—(i) physical contact and advances involvingunwelcome and explicit sexual overtures or(ii) a demand or request for sexual favours or(iii) showing pornography against the will of awoman or(iv) making sexually coloured remarks shall beguilty of the offence of sexual harassment.(2) ..(3) Any man who commits the offence specified in clause(iv) of sub sectionshall be punished withimprisonment of either description for a term which mayextend to one year or with fine or with both.]”Clauseof sub section of section 354 A of the IndianPenal Code requires that a man should himself make sexually colouredremarks. The language of section 354 A(1)(iv) of the Indian Penal Codedoes not introduce vicarious liability nor could it be said that theLegislature intended to introduce vicarious liability by necessaryimplication. The First Information Report nowhere alleges that theapplicant made sexually coloured remarks against the non applicantNo.2. It is alleged in the First Information Report that the sexuallycoloured remarks were made by accused No.1 and the applicant beingAdministrator of the Whatsapp group had not taken action of deletingthe accused No.1 from the group nor had sought apology from theaccused No.1. In our opinion in the facts of present case non removalKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 7 13APL 573.16of the Indian Penal Code arenot fulfilled.10. The next offence alleged against the applicant is undersection 107 of the Indian Penal Code. To appreciate the criminal liabilityof an administrator of a Whatsapp group it is necessary to understandthe concept of abetment as enshrined in section 107 of the Indian PenalCode. Section 107 of the Indian Penal Code reads as follows:“107. Abetment of a thing.— A person abets the doing of athing who—First Instigates any person to do that thing orSecondly. Engages with one or more other person orpersons in any conspiracy for the doing of that thing if anact or illegal omission takes place in pursuance of thatconspiracy and in order to the doing of that thing orThirdly. Intentionally aids by any act or illegalomission the doing of that thing.Explanation 1. —A person who by willfulmisrepresentation or by willful concealment of a materialfact which he is bound to disclose voluntarily causes orKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 8 13APL 573.1610 SCC 797 by the Hon’ble Apex Courtwhich in para 6 has held thus “6. Section 107 IPC defines abetment of a thing. Theoffence of abetment is a separate and distinct offenceprovided in IPC. A person abets the doing of a thing when(l) he instigates any person to do that thing orengageswith one or more other persons in any conspiracy for thedoing of that thing orintentionally aids by act orillegal omission the doing of that thing. These things areessential to complete abetment as a crime. The word“instigate” literally means to provoke incite urge on orbring about by persuasion to do anything. The abetmentmay be by instigation conspiracy or intentional aid asprovided in the three clauses of Section 107. Section 109provides that if the act abetted is committed inconsequence of abetment and there is no provision for thepunishment of such abetment then the offender is to bepunished with the punishment provided for the originaloffence. “Abetted” in Section 109 means the specific offenceabetted. Therefore the offence for the abetment of which aKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 9 13APL 573.16when the grievance of the non applicant No.2is that it is the accused No.1 who had used filthy language against thenon applicant No.2. We are therefore satisfied that the allegations inthe First Information Report and material brought on record in the formof charge sheet do not disclose essential ingredients of offencepunishable under section 509 of the Indian Penal Code. 12.The next offence alleged against the applicant is undersection 67 of the Information Technology Act 2000 which reads asunder:“67. Punishment for publishing or transmittingobscene material in electronic form. Whoever publishes ortransmits or causes to be published or transmitted in theelectronic form any material which is lascivious or appeals to theprurient interest or if its effect is such as to tend to deprave andcorrupt persons who are likely having regard to all relevantcircumstances to read see or hear the matter contained orembodied in it shall be punished on first conviction withimprisonment of either description for a term which may extend tothree years and with fine which may extend to five lakh rupeesand in the event of second or subsequent conviction withimprisonment of either description for a term which may extend tofive years and also with fine which may extend to ten lakhrupees.”To constitute an offence under Section 67 of theInformation Technology Act 2000 a person must publish or transmit anobscene material in electronic form. Section 67 provides for punishmentKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 11 13APL 573.16of the Information Technology Act 2000 which reads asunder:“2. Definitions. In this Act unless thecontext otherwise requires "intermediary" with respect to any particular electronicrecords means any person who on behalf of another personreceives stores or transmits that record or provides any servicewith respect to that record and includes telecom serviceproviders network service providers internet service providers web hosting service providers search engines online paymentKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 12 13APL 573.16the power under Section 482 can be exercised by this Court where the allegations made in the FIR even if they are taken at theirface value and accepted in their entirety do not prima facie constituteany offence or make out a case against the accused. Taking an overallKHUNTEWWW.LIVELAW.IN on 22 04 2021 on 23 04 13 13APL 573.16509 and 107 of the Indian Penal Code andsection 67 of the Information Technology Act 2000. We are thereforesatisfied that continuation of present proceedings against the applicantwould amount to abuse of process of Court. 14.We therefore pass the following order:i) The First Information Report No.316 andconsequent charge sheet bearing No. 216 for theoffences punishable under sections 354 A(1)(iv) 509 and107 of the Indian Penal Code and Section 67 of theInformation Technology Act 2000 and further proceedingsof Regular Criminal Case No.1716 pending on thefile of Judicial Magistrate First Class Arjuni Morgaon District Gondia are quashed and set aside. Rule is made absolute in the above terms. (AMIT B. BORKAR J)(Z.A.HAQ J)KHUNTEWWW.LIVELAW.IN 

Summary: The administrator of a WhatsApp group shall not be held liable for the messages and posts put up by the members of the group in the group chat despite it being objectionable and offensive. A division bench of Justice Z.A. Haq and Justice Amit. B. Borkar while adjudicating the matter in Kishore v. State of Maharashtra &amp; Anr [CRIMINAL APPLICATION (APL) NO. 573 OF 2016] dealt with the criminal liability of a WhatsApp group administrator and whether his action or inaction against offensive messages may be considered as a form of abetment or not. An FIR report was registered against an accused who was the WhatsApp group administrator of a group chat, on the ground that one of the members of the group made filthy sexually coloured remarks against the complainant and no action such as removing the member from the group had been taken by the accused against the member. Upon receiving the FIR, the investigating agency initiated the investigation and recorded statements of various witnesses. After winding up the investigation, the agency seized the mobile phones of the accused as well as the member who posted the offensive message. The Court, in deciding the liability of the accused took into consideration various factors involving the instant messaging platform WhatsApp. It expressed that the group administrator is an individual who creates and maintains the group by adding or deleting members and he has limited power in controlling the functioning of what members post in the group. He cannot regulate, moderate or censor the content that is posted on the group. Due to the absence of a specific penal provision, vicarious liability cannot be imposed on the administrator of a WhatsApp group. Further, he cannot be expected to presume or have advance knowledge of criminal acts of members of the group. On the issue of abetment, Court held that upon considering the material and looking into the results of the investigation, there were no facts that could substantially prove that the accused was conspicuously involved in making those sexually coloured comments.