Case BriefsHigh Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while addressing the matter, observed that:

In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

By the present application under Section 482 of the Code of Criminal Procedure, the applicant laid challenge to charge-sheet filed in the Court of Judicial Magistrate in pursuance of FIR registered with non-applicant 1 for offences punishable under Sections 354-A(1)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.

As per the FIR, applicant was an administrator of a WhatsApp group, that accused 1 used filthy language against non-applicant 2 on a WhatsApp group of which applicant was an administrator, that despite accused 1 using filthy language against the non-applicant 2, applicant had not taken any action against accused 1.

Further, it was alleged that the applicant being the administrator had not removed nor deleted accused 1 from the WhatsApp Group.

In view of the above, non-applicant 2 lodged the FIR against the applicant and accused 1.

Hence, the applicant has, therefore, filed a present application challenging filing of charge-sheet and continuation of proceedings against the applicant.

Crux of the Issue

Whether an administrator of a WhatsApp group can be held criminally liable for the objectionable post of its member for committing offences punishable under Sections 354-A(i)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000?

Powers of the WhatsApp Group Administrator:

A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.

The administrator does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.

Further, it was expressed that, a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.

In the FIR it was stated that sexually coloured remarks were made by accused 1 and applicant being administrator of the WhatsApp group had not taken action of deleting the accused 1 from the group, nor had sought an apology from accused 1.

Decision

In Court’s opinion, non-removal of a member by the administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator.

Court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case.

Section 509 of the IPC criminalizes word, gesture, or act ‘intended’ to insult the modesty of a woman. In order to establish this offence, it is necessary to show that modesty of a particular woman has been insulted by a spoken word, gesture or physical act.

In the present matter, the above-stated offence cannot be made out against applicant, when the grievance of non-applicant 2 was that accused 1 had used filthy language against the non-applicant 2.

To constitute an offence under Section 67 of the Information Technology Act, 2000, a person must publish or transmit an obscene material in electronic form.

High Court in view of the above discussion, found no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which was lascivious or appealed to prurient interest or its effect was such to tend to deprave and corrupt persons who were likely to read, see or hear the matter contained.

Bench added that the applicant had neither published nor transmitted or caused to be published or transmitted any electronic form, any material which was obscene in nature.

Lastly while concluding, the High Court held that parameters of exercise of the powers conferred on this Court under Section 482 CrPC being settled, that in order to prevent the abuse of process of any Court and to secure the ends of justice, this power can be exercised.

Bench stated that the present case is the one where power needs to be exercised.

Taking the overall view of the matter, Court was satisfied that even if allegations in the FIR were accepted as correct and considering the material in charge sheet on its face value it does not disclose essential ingredients of offences alleged against the applicant under Sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

Hence the continuation of present proceedings against the applicant would amount to an abuse of process of Court. [Kishor v. State of Maharashtra, 2021 SCC OnLine Bom 654, decided on 01-03-2021]


Advocates before the Court:

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.

Case BriefsSupreme Court

Supreme Court: Explaining the difference between Sections 34 and 149 of the IPC, the 3-judge bench of NV Ramana, Surya Kant* and Aniruddha Bose, JJ has held that

“Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.”

The Court was hearing a case where all the accused had individually inflicted blows on the victim’s body using axes. The appellants made death threats to the complainant on 24.01.1998 if he were to attempt to irrigate his fields and then they used sharp edged weapons the very next day and further declared that they would not rest till they killed the complainant.

Applying the aforementioned principles to the case, the Court noticed that both the common object and the common intention were traced back to the same evidence, i.e., evaluating the conduct of the accused as narrated by the injured and the eye-witness. Further, a perusal of Section 313 CrPC statement showed that the appellants were expressly confronted with their specific role in the offence: that each of them had individually attacked the complainant with a deadly object in furtherance of the common intention of killing him.

The Court, hence, held that the appellants did not suffer any adverse effect when the High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC.

Noticing that an offence under Section 307 IPC was clearly made out against each of the appellants, the Court held that the medical experts have in their depositions clearly explicated that the weapons used and the injuries inflicted were more than sufficient to cause death in ordinary course of nature. Also, the facts of the case manifest the appellant’s intention to inflict bodily injury knowing fully that such injuries would ordinarily lead to the complainant’s death.

“The gravity of the injuries is beyond doubt. Not only were there seven injuries, some of which were deep cuts on vital parts of the body including on the head (above the ear); but the appellants broke all the bones in the complainant’s feet below the knee. Most appallingly, the injuries have led to amputation of an entire limb, leaving the complainant permanently disabled.”

That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently pre-meditated. The incident was not in a spur-of-the-moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields.

Noticing that there was nothing on record to suggest that the complainant caused any provocation, the Court held that specific roles have been attributed to each of the appellants by the injured and the solitary eye-witness, establishing their individual active participation in the crime.

On the issue of mitigation of sentence, the Court said that it cannot be oblivious of the fact that the appellants and their deceased co-accused were all armed with deadly weapons.

“They surrounded the complainant and in a brutal attack caused him gruesome injuries and disabled him for life.”

It further noticed that the appellants have not undergone even half of their sentence period.

“Having enjoyed the more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor. Any misplaced sympathy with the appellants is likely to cause injustice to the victim of the crime.”

The Court, hence, refused to show leniency and reduce the sentence.

[Rohtas v. State of Haryana, 2020 SCC OnLine SC 1014, decided on 10.12.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that it is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault.  If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred.

BACKGROUND OF THE CASE


The Court was hearing the matter where the appellants, convicted under Section 302/34 and sentenced to life imprisonment, had sought acquittal in a case where 2 men died as a result of assault by the appellants. Out of 5, 2 accused were acquitted by the Sessions Court giving them benefit of doubt. While the eye witnesses had deposed of assault upon the two deceased by appellants nos.2 and 3 only. There was no allegation that appellant no.1 was armed in any manner or that he also assaulted any one of the two deceased. It was, hence, contended that there is no material to infer common intention with regard to appellant no.1.

COMMON INTENTION


The Court explained that common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established.

“There can hardly be any direct evidence of common intention.  It is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.”

The foundation for conviction on the basis of common intention is based on the principle of vicarious responsibility by which a person is held to be answerable for the acts of others with whom he shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. It is therefore not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. If the nature of evidence displays a pre-arranged plan and acting in concert pursuant to the plan, common intention can be inferred. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case.

“The coming together of the accused to the place of occurrence, some or all of whom may be armed, the manner of assault, the active or passive role played by the accused, are but only some of the materials for drawing inferences.”

CONCLUSION ON FACTS


The Court took note of the facts that

  • appellant no.1 lay in wait along with the other two appellants who were armed.
  • appellant no.1 stopped the two deceased who were returning from the market. The assault commenced after the deceased had halted.
  • While one deceased died on the spot as a result of the brutal assault, the other was injured in the first assault upon him by appellant no.3, after which he tried to flee.
  • Appellant no 1 along with the other accused chased him, caught hold of him after which he was brutally assaulted. He was then dragged by the accused persons to the place where the first deceased lay motionless.

The Court, hence, said,

“To our mind no further evidence is required with regard to existence of common intention in appellant no.1 to commit the offence in question.”

It, hence, refused to grant any benefit to appellant no.1 on the plea that there is no role or act of assault attributed to him, denying the existence of any common intention for that reason.

[Subed Ali v. State of Assam, 2020 SCC OnLine SC 794, decided on 30.09.2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed against the order of the trial court whereby the respondent-accused were acquitted of the offences under Section 498-A (husband or relative of a woman subjecting her to cruelty) and Section 306 (abetment of suicide) read with Section 34 (acts done by several persons in furtherance of common intention) of the Penal Code.

The case of the prosecution was that prior to date of incident, the accused (husband and in-laws of the deceased), in furtherance of their common intention, subjected the deceased to cruelty and abetted a suicide. The accused were chargesheeted and tried for the offences under Sections 498-A and 306 read with Section 34 IPC. However, they were acquitted of all the charges by the trial court. Aggrieved thereby, the State filed the instant appeal.

Regarding the offence under Section 498-A, the High Court observed: “Law on what would amount to an offence under Section 498-A, has been well discussed in catena of judgments. It is settled law that under Section 498-A IPC, every cruelty is not an offence. The cruelty must be of such a degree as contemplated by this Section, i.e. it must be willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, and health of the woman.” It was noted by the Court that the allegations made against the accused regarding demand of money, ill-treatment due to inability to cook, cruelty due to not conceiving, were general allegations and no details were mentioned. In such circumstances, it was held that the allegations under Section 498-A were not proved.

Coming to the offence under Section 306, the High Court noted that this was a case of abetment by instigation. It was observed: “In order to constitute ‘abetment by instigation’ there must be a direct incitement to do the culpable act.” After referring to a catena of decisions on the subject and considering the facts of the instant case, the Court stated: “It is nobody’s case that the accused intended Aarifa to commit suicide. A fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it may be, cannot fray the fabric of the provision contained in Section 306 IPC. In short, it is not what the deceased ‘felt’, but what the accused ‘intended’ by their act which is more important in this context.”

In light of what has been mentioned above, the High Court concluded that the opinion of the trial court could not be held to be illegal or improper or contrary to law. The order of acquittal, in Court’s view, required no interference. [State of Maharashtra v. Nabab Mohammad Shaikh, 2020 SCC OnLine Bom 290, decided on 04-02-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Baghi and Suvra Ghosh, JJ., partly allowed a criminal appeal against the order of the trial court and thereby acquitted two out of six appellants who were convicted under Section 302 (punishment for murder) and Section 109 (punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment) read with Section 34 (acts done by several persons in furtherance of common intention) IPC.

In all, six accused were convicted and sentenced for murdering the deceased after a dispute over catching of fish. All of them appealed against the decision of the trial court. The High Court, considering the on record, was convinced that the involvement of four out of six said appellants was proved by the prosecution beyond a reasonable doubt. Consequently, the appeal qua those four appellants were dismissed and their conviction and sentence as awarded by the trial court were upheld. However, as regards the remaining two appellants, the High Court was of the opinion that they deserve to be given benefit of doubt.

Notably, the two remaining appellants, unlike others, were not found at the scene of the crime. However, alleged the prosecution, that they too shared the common intention with other appellants to commit the murder of the deceased.

Regarding “common intention” under Section 34, the Court explained thus:

“Common intention under Section 34 IPC is a species of constructive liability which renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such an act is done in furtherance of the common intention.Common intention, however, cannot be confused with similar intention.”

It was further observed: “Although accused persons may have similar intention to commit a crime, say murder, until and unless the pre-requisites of:(a) pre-consent, (b) presence and (c) participation, in respect of each accused are established, it cannot be said that they shared common intention and be culpable for the crime committed by any of them in furtherance to such intention.”

Coming back to the instant case, the Court was of the view that although there was some evidence that the two appellants had enmity with the deceased and tried to obstruct prosecution witnesses from going to the police station, there was no evidence on record that they were present at the place of occurrence and participated in the assault and murder of the victim with other appellants.

In such view of the matter, the High Court quashed the conviction and sentence awarded to the two appellants by the trial court. [Jagan Gope v. State of W.B., 2019 SCC OnLine Cal 5589, decided on 16-12-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed against the order of the trial court whereby it had rejected petitioner’s application filed under Section 227 CrPC seeking discharge in a criminal case.

The case against the petitioner was that he along with the co-accused tried to intervene in a road rage fight between the complainant and a third party. The complainant was admittedly drunk at the time and slapped the co-accused. The co-accused called for the petitioner to bring the iron rod to teach a lesson to the drunk complainant. Thereafter, the co-accused attacked the complainant and he sustained multiple injuries. The petitioner was charge-sheeted under Section 308 (attempt to commit culpable homicide) read with Section 34 (acts done by several person in furtherance of common intention) of the Penal Code.

D.N. Goburdhun, Advocate representing the petitioner contended that there was an absence of mens rea or common intention or conspiracy on part of the petitioner. Per contra, Meenakshi Dahiya, APP appearing for the State submitted that the petitioner had been rightly charged as aforesaid.

Relying on State of M.P. v. Saleem, (2005) 5 SCC 554, the High Court noted: “though common intention should be anterior in time to the commission of crime and involves a pre-arranged plan or a prior concert, however, intention is to be gathered from the act, conduct, relative circumstances, and the attendant situations that cropped up”.It was reiterated that common intention may develop at spur of the moment.

On facts of the case, it was held that the petitioner actively participated in the act by procuring the iron rod and handing it over to the co-accused. Therefore, it could not be said that there was no common intention among the accused. As such, it was held that there was no infirmity with the order of the trial court, and the petition was dismissed.[Manish Sharma v. State (NCT of Delhi), 2019 SCC OnLine Del 9031, decided on 03-07-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Navin Sinha and K.M. Joseph, JJ., while addressing a criminal appeal regarding assault committed during a dispute between neighbors with regard to strayed cattle in which Appellant 2 was additionally convicted under Section 304 Part II read with Section 34 IPC, altered the sentence from 8 years to 2 years.

The facts of the case as laid down in a nutshell state that some bullocks which belonged to the appellants had strayed into the compound of the deceased. The deceased, in order to drive them away from his land, used lathi which came onto the notice of the appellants and led to some altercation between the two which ended up with major injuries to the deceased and led to his death.

The contentions placed by the appellants’ counsel were that the injuries suffered by the appellants explain that they had only acted in self-defence and they were not the aggressors. There was no intention to cause death; much less the knowledge can be attributed from the nature of the assault. Further, the submissions state that the offence deserved to be reduced and or/alternatively the sentence was excessive in the facts of the case. For the stated contentions they placed reliance on Darshan Singh v. State of Punjab, 2009 (16) SCC 290 and Maqsood v. State of U.P, 2016 (15) SCC 748.

The Supreme Court on noting the circumstances, evidences and the contentions placed, concluded by stating that the occurrence had taken place at the spur of the moment without any premeditation. Appellant only intended to vent their ire against neighbour for having assaulted their bullocks. Since there was no presence of common intention that makes Appellant 2 individually answerable and as the occurrence had taken place in 1980, the Court was convinced to reduce the sentence to 2 years by putting reliance on the case aforementioned.  The appeal was allowed to the stated extent. [Lakshmi Chand v. State of U.P., 2018 SCC OnLine SC 1135, decided on 24-08-2018]