Sending abusive messages to a Personal WhatsApp account is not an offence u/s 294 of IPC: Bombay High Court

 on 12 03 2020 on 20 09 1 criwp557.18IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 557 OF 2018Nivrutti s o Hariram Gaikwad Age 33 years Occ Sub Divisional Ofcer Residing at house of Choughule Near Shiv Mandir Naigaon Tq. Naigaon Dist Nanded....PETITIONERV E R S U S1)The State of Maharashtra Through Police Station Ofcer Naigaon Police Station Tq. Naigaon Dist Nanded.2)Mrs. Pooja Nkivrutti Gaikwad Age 25 years Occ Household Residing at House of Shankarshet Harde Patil Behind S.P. Ofce Near Surya Hospital Vajirabad Nanded Tq. & Dist. Nanded....RESPONDENTS .. ….Shri. Shambhuraje V. Deshmukh Advocate for the PetitionerShri R.D. Sanap A.P.P. for the Respondent No.1 StateShri.Kiran Nagarkar Advocate h f Smt. Smita S. Kulkarni Advocate forRespondent No. 2 … CORAM : T.V. NALAWADE & M.G. SEWLIKAR JJ. Date of reserving of judgment : 05.02.2020Date of pronouncement of judgment : 11.03.2020 on 12 03 2020 on 20 09 2 criwp557.18JUDGMENT :This petition is fled under Article 226 and 227 of theConstitution of India and under Section 482 of the Code of CriminalProcedure for quashing of the F.I.R.2.Facts giving rise to this petition are that the respondent No.2 is the wife of the petitioner. She married petitioner on 14.5.2017.After marriage the petitioner did not treat the respondent No. 2 well.He would beat her and would call her a prostitute and that she earnsmoney by doing business of prostitution. It is further alleged that thepetitioner married the respondent No. 2 for the sake of others as thepetitioner is homosexual. On 1st January 2018 the petitioner calledher up and abused her in flthy language. Again on 27th and 28thFebruary 2018 he sent WhatsApp message to the respondent No. 2calling her prostitute and that she earns money by doing business ofprostitution. It is further alleged that the petitioner had made phonecalls to his relatives also. Accordingly she fled an F.I.R. on 5.3.2018on the basis of which ofence under Sections 294 500 506 and 507 ofthe Indian Penal Code has been registered against the petitioner.3.Heard Shri. Shambhuraje V. Deshmukh learned counsel forthe Petitioner Shri R.D. Sanap learned A.P.P. for the Respondent No.1 State and Shri. Kiran Nagarkar Advocate h f Smt. Smita S. Kulkarnilearned counsel for the Respondent No. 2. on 12 03 2020 on 20 09 3 criwp557.184.Shri Deshmukh the learned counsel for the petitionersubmitted that ofence under Section 294 of the I.P.C. will be attractedonly if the obscene words are uttered in public place and that theobscene words should be of such a nature as to cause annoyance toothers. He submitted that the WhatsApp messages are personalmessages. Therefore sending of personal messages on personalaccount of WhatsApp will not amount to utterance of words at publicplace. He submitted that the alleged messages have not been sent onWhatsApp group.5.Shri Sanap the learned A.P.P. for respondent Statesubmitted that the messages sent on personal account on WhatsApp amounts to utterance of obscene words in public place. Therefore ofence under Section 294 of the I.P.C. is made out.6.Section 500 and 506 of the I.P.C. are non cognizableofences.7.Section 294 of the Indian Penal Code read as under : “Section 294 IPC Whoever to the annoyanceof others does any obscene act in anypublic place orsings recites or utters anyobscene song ballad words in or near anypublic place shall be punished withimprisonment of either description for a term on 12 03 2020 on 20 09 4 criwp557.18which may extend to three months or withfne or with both."Section 294 of the I.P.C. requires that a) act done must bean obscene act and it must be done in any public place. Sub Section(T.V. NALAWADE J.)mahajansb 

Summary: Sending abusive personal messages on WhatsApp will not amount to ‘Obscenity’ in a ‘Public Place’ and will not be considered as an offence u/s 294 of IPC held by Justice M.G. Sewlikar and Justice T.V. Nalawade in Nivrutti V. State of Maharashtra [Criminal Writ Petition No. 557 of 2018]. .  Facts related to this case is: respondent No. 2 is the wife of the petitioner, she married the petitioner on 14.5.2017. After marriage, the petitioner did not treat respondent No. 2 well. He would beat her and would call her a prostitute and that she earned money by doing the business of prostitution. It was further alleged that the petitioner married respondent No. 2 for the sake of others as the petitioner was homosexual. On 1st January 2018, the petitioner called her up and abused her in filthy language. Again on 27th and 28th February 2018, he sent a WhatsApp message to respondent No. 2 calling her prostitute and that she earned money by doing business of prostitution. It was further alleged that the petitioner had made phone calls to his relatives also and accordingly, she fled an F.I.R. on 5.3.2018 on the basis of which offences under Sections 294, 500, 506 and 507 of the Indian Penal Code has been registered against the petitioner. The Division Bench of Hon’ble Court observed while quashing the FIR registered u/s 294 of IPC observed that “Section 294 of the I.P.C. requires that a) act done must be an obscene act and it must be done in any public place. Sub Section (b) of Section 294 of I.P.C. can be pressed into service if anyone sings, recites or utters any word, song, ballad words, near any public place and Section 294 further requires that such obscene acts, song, ballad or utterance of words cause annoyance to others.” It was further expounded by the Hon’ble Court that “In the case at hand, there is no utterance of words in any public place but the alleged obscene messages are sent on social media i.e. WhatsApp. Respondent No. 2 has alleged that the messages are uploaded on Facebook. The compilation produced by respondent No. 2 shows that those are the WhatsApp messages and are not the messages uploaded on Facebook. WhatsApp messages sent on personal accounts are strictly personal. Nobody has access to those messages except the sender and the receiver.”   The Hon’ble Court made a reference to the privacy and Security Terms given on WhatsApp and noted that the literature published on the Website clearly indicated that the WhatsApp messages sent by one person to another are end-to-end encrypted which means, only the sender of the message and the recipient of the message can read the messages. It also claims that nobody in between, not even WhatsApp, can read these messages. These messages are secured with a lock and only the recipient and sender have a special key needed to unlock and read them. “The literature available on the Website of the WhatsApp makes it abundantly clear that such types of messages are strictly personal messages and nobody even the WhatsApp can have access to these messages which means nobody except the sender and the recipient can read the messages. Thus, when these messages cannot be read by others, it ipso-facto goes to show that no third person nor even WhatsApp can have access to those messages. Therefore, WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons.” The Hon’ble Court further observed that if the messages were posted on the WhatsApp Group then it would have been called a ‘Public Place’ since all the members of the group will have access to the same, hence sending personal messages on WhatsApp will not amount to the utterance of obscene words in Public Place and for the reasons stated, Section 294 of IPC cannot be invoked. Click here to read the judgement 
Judgement reviewed by-Sarita Kumari


 Judgement reviewed by-Sarita Kumari