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 BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while partly allowing the appeal modified the offence to fall under Section 354 of the Penal Code 1860 from Section 377 IPC.

The instant appeal was filed against the conviction and sentence imposed on the appellant.

Trial Court found the appellant not guilty for the offence under Section 376 of Penal Code, 1860 but found him to be guilty for the offence under Section 377 IPC.

Appellant filed the instant appeal against the trial court’s decision.

Prosecutions’ Case

Victim who has been stated to be partially deaf and completely dumb was aged 37 years at the time of occurrence and also unmarried.

While the victim was taking bath in the pump set, the accused went behind and hugged her with an intention to commit rape.

Analysis

Though the accused attempted to rape the victim girl, she escaped from such an attempt.

Considering the evidence of the Doctor [PW8] that there was no external injury, other than the injury noted in the shoulder of the victim and also considering the evidence of the Doctor [PW8] and the certificate issued by the Doctor, this Court opined that the said act of the appellant would fall under Section 354 IPC and not under Section 377 IPC.

Bench noted that no material on record was placed to show that the accused had committed an unnatural offence.

PW4 an innocent victim thwarted on the accused, the moment he hugged her from back and therefore, she did not suffer any injury on her private parts.

“Section 375 IPC: Rape

A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First — Against her will.

Secondly — Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age.”

Section 377 IPC deals with the unnatural offence.

In accordance with the medical evidence, the victim girl suffered an abrasion on her shoulder in the scuffle to protect her from the accused, but no injury on her private parts was caused.

In view of the above, the question for consideration was whether the said act of the accused would amount to the commission of offence under Section 377 or 375 IPC or will it fall under Section 354 IPC?

Court held that the overt act attributed as against the accused does not fall under the ingredients for the offence under Sections 375 or 377 IPC. Whereas, the appellant attempted to outrage the modesty of the victim, who is partially deaf and dumb.

Section 354 IPC: Assault or criminal force to woman with intent to outrage her modesty

“Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

In view of the above position, Supreme Court’s decision in Aman Kumar v. State of Haryana, (2004) 4 SCC 379 was referred.

Supreme Court’s decision in Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) SCC 8 560 was referred in regard to the issue that in the absence of charge under any other section, whether the accused should be acquitted or convicted for outraging the modesty of a woman. In this decision of the Supreme Court, Section 222 of the CrPC was invoked, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it.

In the present case, Court states that though the appellant was prosecuted for the offence under Section 376 IPC, he was convicted and sentenced for the offence under Section 377 IPC.

In view of the occurrence of the incident, the Court held that the said act of the appellant as discussed above would fall under Section 354 IPC.

Hence the appeal was partly allowed. [Vairamuthu v. State, Crl. A (MD) No. 357 of 2015, decided on 01-10-2020]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Chaudhary J., upheld and modified the Judgment given by Trial Court on grounds of the accused being found guilty of the offence under Section 354, 506 and 509 of Penal Code, 1860.

The facts in a nutshell are that the informant was chased by the accused while she used to go for tuitions at a computer center. He used to wait for her at the bus stand and chase her, make illicit comments, ask her to marry him by showing her money, convincing her to be in an illicit relationship with him. The informant refused and asked him to behave himself but to no avail as he still kept doing the same and threatened to kill her.

Later, the informant confided in her family regarding the set of events and the father and brother caught the accused red-handed and registered an FIR against him under Sections 354, 506 and 509 of Penal Code, 1860. He was tried in the trial court and sentenced to imprisonment plus fine. Hence, the instant revision application was filed for the intervention of the High Court and the order of conviction to be set aside.

Counsel for the petitioner Ashish Kumar submitted that no case under Section 354 can be made out as the petitioner never held the informants hand and hence the charges are false and the ingredients of the section are not satisfied and hence the offence cannot be made out in the eyes of law. He further submitted that accused has been convicted based on the examination of two witnesses which is not sufficient for a fair trial as the two witnesses were the informant and her brother who are highly interested witnesses in the present case. The counsel further prayed the court to take a lenient view on the point of conviction as the age of the accused on the date of conviction was 42 years and his present age is 52 years, hence the sentence is liable to be looked into and modified by the court. He has also argued that when the FIR was registered the act of holding hand/ touching the informant was not mentioned which was added later in the prosecution case and therefore the accused has been falsely implicated in the present case.

Counsel, Pankaj Kumar prayed for no interference as there was no inconsistency in the finding of the facts, the examination of the witnesses, or appreciation of the evidence, thereby being no illegality or perversity in the impugned judgment.

The Court after hearing both sides relied on a Judgment of the Supreme Court titled State of Punjab v. Major Singh, AIR 1967 SC 63 held that the act of physical touching in the present case does not affect the order of conviction as other basic ingredients of Sections 354, 506 and 509 of IPC is clearly made out. It also held that the argument that the act of touch was not made out during filing of FIR but later in the prosecution case stands no ground as FIR is not an encyclopedia of the entire prosecution case.

In view of the above, the sentence is modified and criminal revision application disposed off. [Shyam Gupta v. State of Jharkhand, 2020 SCC OnLine Jhar 718, decided on 07-08-2020]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while dismissing the petition in regard to quashing of FIR and final report that alleges petitioner of being punishable for offence under Section 509 of Penal Code, 1860, referred to the Supreme Court decision of Deputy Inspector General v. Samuthiram, (2013) 1 SCC 598, wherein it was held that,

“…Sexual harassment like eve-teasing of women amounts to violation of rights guaranteed under Article 14, Article 15 as well. We notice in the absence of effective legislation to contain eve-teasing, normally, complaints are registered under Section 294 or Section 509 IPC. …… Eve teasing today has become pernicious, horrid and disgusting practice. ….. More and more girl students, women etc. go to educational institutions, work places etc. and their protection is of extreme importance to a civilized and cultured society.”

Facts of the present case are,

De facto complainant while proceeding to her house was approached by a motorcyclist who invited her to accompany him on his bike and further also made sexual gesture to her with his hand.

Further based on written complaint by the victim, a case was registered by the petitioner, after which on completion of the investigation a final report was filed against the petitioner for an offence punishable under Section 509 of IPC.

The present petition was thus filed under Section 482 CrPC for quashing of FIR & final report registered against the petitioner.

Petitioner’s counsel raised 3 grounds:

  • Allegations made against the petitioner in FIR do not attract the offence punishable under Section 509 IPC
  • Allegations raised in final report do not disclose commission of an offence punishable under Section 509 IPC
  • Acts allegedly committed by petitioner are trivial in nature and they come within the purview of Section 95 of IPC.

“Section 509 IPC provides that whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished.”

Further, it is to be noted that, there is a distinction between an act of merely insulting a woman and act of insulting the modesty of a woman.

To attract Section 509 IPC, merely insulting a woman is not sufficient. Insult to the modesty of a woman is an essential ingredient of an offence punishable under Section 509 IPC. Crux of the offence is the intention to insult the modesty of a woman.

In the case of Rupan Deol Bajaj v. K.P.S Gill, (1995) 6 SCC 194, it was stated that,

 “If the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of decency of a woman, then it can be found that it is an act of insult to the modesty of the woman.”

 In the instant case, petitioner and the victim were not previously acquainted with each other. Therefore it cannot be found that the intention of the petitioner was to give the victim a lift or free ride on the motorcycle, on account of friendship or relationship with her.

Acts allegedly committed by the petitioner amount to an affront to her feminine decency. Invitation made to the victim contained an insinuation that she was a woman of easy virtue who was ready and willing to go with any man during night.

Counsel for the petitioner contended that — intention has to be gathered from the act complained of and the circumstances under which it is committed.

Adding to his contentions, he also stated that if even the alleged acts were committed by the petitioner they were trivial in nature and should come within the purview of Section 95 of IPC. He also relied on the Supreme Court’s decision in Veeda Menezez v. Yusuf Khan, AIR 1966 SC 1773.

Act of affront to the decency and dignity of a woman cannot be considered as trivial in nature.

 It is to be noted that Section 354 IPC prescribes the punishment for outraging the modesty of a woman by an act of assault or use of criminal force. In spite of the existence of the aforesaid provision, legislature has incorporated Section 509 IPC, making punishable even a verbal attack of insulting the modesty of a woman.

Thus, in Court’s opinion, the contentions of the petitioner cannot be accepted and petition stands dismissed. [Abhijeet J.K. v. State of Kerala, 2020 SCC OnLine Ker 703, decided on 20-02-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Vimla Singh Kapoor, J. reduced the sentence of the applicant as he had already spent some time in the jail.

The applicant through his counsel Manoj Mishra has challenged the order whereby he has been charged under Sections 456 and 354 IPC with RI for six months including a fine for the outrage of modesty which further has been affirmed by an appeal. It was contended that the conviction has not been made on merits and the fact that the case was quite old and the applicant has already remained in jail for some time.

Considering the sentence and the fact that the incident had taken place in the year 2002 along with the fact that the applicant was in jail for some days and was leading a well-settled life with responsibilities, the Court thinks it proper to reduce the sentence imposed to the period already undergone.

Accordingly, the revision petition stood allowed in part. [Lal Sai v. State of Chhattisgarh, 2018 SCC OnLine Chh 670, decided on 17-12-2018]