Clicking, sending question paper images on WhatsApp not a privacy breach under IT Act: Gujarat HC

The Gujarat High Court recently noted that clicking photographs of a question paper during an examination and sharing them via WhatsApp does not amount to a violation of privacy under Section 66E of the Information Technology Act, 2000 [Rahul Babulal Purohit & Anr. v State of Gujarat & Anr.].

Justice PM Raval made the observation in an order dated June 16, while partly allowed a plea filed by two accused seeking to quash a first information report (FIR) registered against them.

The FIR was registered in November 2018 after an exam invigilator informed authorities that a candidate was using a mobile phone inside an examination hall to click photographs of the question paper and send them outside.

The candidate was allegedly found with a mobile phone and, upon inquiry, stated that he had sent the images via WhatsApp to his brother, who was named as a co-accused in the FIR.

The Court, however, held the provision under the Information Technology Act that punishes the capture and circulation of private images was not attracted in this case.

“What has been sent by the applicant No.2 to applicant No.1 is the photograph of the question paper captured on mobile phone, thus, the act of sending photograph through WhatsApp to his brother cannot be termed as an act of intentionally or knowingly capturing, publishing or transmitting the image of a private area of any person, so as to attract Section 66-E of the IT Act, thus, the provisions of Section 66-E being not attracting, the same is also required to be quashed and set aside," the Court said.

The Court also found that Section 188 of the Indian Penal Code, which deals with disobeying orders of public officials, was wrongly applied in the FIR. It observed that exam instructions, such as not carrying mobile phones, cannot be treated as a formal legal order from a public official under this Section.

It further noted that even if Section 188 were to apply, the law requires a written complaint by a public servant before a court can take action.The Court pointed out that the requirement was not met in the present case.

The Court also recorded that the State prosecutor agreed that these two provisions (Section 66E of the IT Act and Section 188 of the IPC) were not applicable in the present case.

Based on this, the Court set aside charges under Section 188 of the Indian Penal Code (IPC) (disobedience of order of public servant) and Section 66E of the Information Technology Act, 2000 (violation of privacy by capturing/transmitting private images).

However, it clarified that the FIR would continue for any other offences that may be made out.

Advocate Maheshkumar K Purohit appeared for the two applicants.

Assistant Public Prosecutor Rohan N Ravel represented the State.

Advocate Yogini V Parikh appeared for the other respondent.

[Read Order]