Forwarded as received? Bombay High Court hits 'Delete' on faulty prosecution over Whatsapp post

Introduction
The advent of social media has revolutionized the way we consume and share information. Various platforms like Whatsapp have made it easier than ever before to create and share news, pictures and insights with friends and family. While all this has its benefits, it also come with a major downside!

In a significant ruling, the Hon’ble Bombay High Court recently quashed a First Information Report (“FIR”) against a person accused of sharing an “objectionable post” on Whatsapp. Observing that each forward of an objectional post on social media platforms cannot be interpreted to have been done to create unrest in the society or between two groups of people, the Hon’ble Aurangabad Bench of the Bombay High Court in Dnyaneshwar Rohidas Wakale versus The State of Maharashtra and Another1 quashed an FIR registered against a man for forwarding an objectional post against Dr. Babasaheb Ambedkar on a whatsapp group.

The present Application was filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing criminal proceedings in Sessions Case No. 121 of 2019 pending before the Learned Additional Sessions Judge, Aurangabad arising out of C.R. No. 223 of 2018 dated 14.08.2018 registered with Khultabad Police Station for the offence punishable under Sections 295 - A and 153 - A of the Indian Penal Code, 1860 and under Section 3 (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act”).

Arguments advanced in favor of the Applicant
It is the case of the Applicant that the FIR indicated that one Rajesh Baburao Waghmare had posted a post in respect of Bharatratna Late Dr. Babasaheb Ambedkar on the First Informant’s mobile around 8:51 pm on 09.08.2018. Since it was an objectionable post, the First Informant felt insulted and questioned the said Rajesh Baburao Waghmare and it was revealed that the post originated from one Chitte and was forwarded by the Applicant in a Whatsapp group called “Only Bhau”.

The Applicant claimed that he had unintentionally forwarded the post and had apologized immediately upon realizing his mistake. It was further contended by the Advocate for the Applicant that the police had not traced the source of the post therefore the Applicant cannot be held responsible for the same. It was further argued that the ingredients of offence under Section 153 - A, 295 - A of the Indian Penal Code, 1860 and Section 3 (v) of the Atrocities Act were not attracted as there was no intention on the part of the Applicant to hurt feelings of any community.

Submissions made by the Respondents
The Learned Assistant Public Prosecutor as well as Learned Advocate for Respondent No. 2 strongly opposed the present Application and submitted that there was an intention to defame one of the respected personalities, who was amongst the committee who framed the Indian Constitution. Emphasizing on the objectionable part of the photo, the Learned Advocates contended that such act was not only objectionable but it was made with an intention to cause prejudice to the harmony in the society and the religious feelings of the entire community from which the First Informant was belonging.

Observations made by the Hon’ble Bench
The Hon’ble Bench noted that neither the First Informant nor the said Rajesh Baburao Waghmare were the members of the Whatsapp group called ‘Only Bhau’. The Hon’ble Bench further observed that Whatsapp is a messenger, which is available for private messaging and calling which comes with end to end encryption. Therefore, personal messages and calls are secured between sender and receiver and unless a post is sent by a member of a group to another person who is not from the group, the question of it going viral does not arise.

The Hon’ble Court further remarked that the entire chargesheet failed to show that there were any efforts taken to find out who was the member of the group who had made the post viral or had allowed the post to be sent to the person who was not a member of the group.

The question before the Hon’ble Bench was whether the material collected in the chargesheet was sufficient enough to hold the offences. The Hon’ble Court observed that everybody appeared to have forwarded the post including the friends of the First Informant therefore it cannot be segregated that the friends of the First Informant had no intention to outrage the religious feelings or to defame Dr. Babasaheb Ambedkar and that the friends of the First Informant were not arraigned as Accused in the present matter. The Hon’ble High Court therefore observed that the investigating agency cannot pick and choose the persons on the basis of their caste to come to a conclusion that they had no intention but only the Applicant had the intention to hurt the feelings of the First Informant. The Hon’ble Bench thereafter questioned the ‘quality of investigation’ conducted by the investigating agency by terming it of ‘low standard’.

The Hon’ble Bench relied upon the decision of the Supreme Court in Priya Prakash Varrier vs. State of Telangana2wherein it has been held that it should be proved that the alleged act of outraging the religious feelings or intending to outrage religious feelings should be deliberate and malicious.

Further amongst others, the Hon’ble Bench relied upon the decision of the Supreme Court in Bilal Ahmed Kaloo vs. State of Andhra Pradesh3wherein it has been held that -

“The question to be decided was whether those acts would attract penal consequences under Section 153-A or 505(2) of the Indian Penal Code. The common ingredients of both offences is promoting feeling of enmity and hatred between two groups religious or racial. The main distinction between the two offences was that while publication of the words or the representation was not necessary under Section 153-A, such publication was necessary under Section 505 of the Indian Penal Code. In such circumstances, no offences under Section 153-A or 505(2) of the Indian Penal Code are made out.”

Thus, the Hon’ble Bench held that the material on record is not sufficient to hold even prima facie that the Applicant had the intention to outrage religious feelings or being hatred or enmity between two religious groups.

The Hon’ble Bench further emphasized the importance of sanction under Section 196 of the Code of Criminal Procedure, 1973 when the offence involved was under Sections 295 - A and 153 - A of the Indian Penal Code, 1860. The Hon’ble Bench noted that Section 196 (1) of the Code of Criminal Procedure, 1973 puts an embargo on the powers of the Court to take cognizance of the offence unless there is previous sanction of the Central or the State Government. The Hon’ble Bench expressed its dismay that the Judges from the District Judiciary are not paying attention to the requirements under Sections 195, 196, 197 and 198 of the Code of Criminal Procedure, 1973.

The Hon’ble Bench while quashing the FIR against the Applicant observed that,

“We are aware about the sentiments of the people when such objectionable posts are created and then made viral. The reality in the life nowadays is that there is rampant use of smart phones and the WhatsApp messenger or any such App and the social media but certain persons are not that Technosavvy and in such circumstances they will land in trouble on some occasion. People are also interested in forwarding every stuff in the form of messages, photos, videos, reels etc. and even on many occasions not even watching that they will forward it. People are required to exercise self restraint in such situation and not to forward whatever is received on such App or social media platforms. Anyway, each forward of such message cannot be interpreted to create unrest in the society or two groups of people or two races.”

Thus, the Hon’ble Court’s decision reaffirms the necessity for rigorous investigation and adherence to legal procedures in cases involving social media communication, underscoring the importance of intent in such cases.

By - Soumya Kamat

  1. Criminal Application No. 2375 of 2019
  2. 2019 (12) SCC 432
  3. 1997 (7) SCC 431
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