Messages on WhatsApp Group amount to public utterances: Punjab and Haryana High Court in obscenity case

The Punjab and Haryana High Court has ruled that posting a message on a WhatsApp group amounts to making an “utterance in a public place” in the context of the offence of obscenity under Section 294 of the Indian Penal Code (IPC).

Justice Shalini Singh Nagpal delivered the ruling on a plea seeking quashing of an FIR registered under Sections 294 (obscene acts and songs), 354-A (sexual harassment), and 509 (word, gesture or act intended to insult the modesty of a woman) of the IPC.

The case arose from a lewd comment posted on a WhatsApp group.

The Court observed that WhatsApp messages sent privately between two individuals are end-to-end encrypted and can be accessed only by the sender and the recipient.

However, it said that when a message is posted on a WhatsApp group, it becomes accessible to all members of that group, thereby attracting the element of a “public” utterance for the purposes of Section 294 IPC.

“Such messages cannot be termed private or personal and posting messages in the WhatsApp group would amount to making an ‘‘utterance in a public place’’ within the meaning of Section 294 IPC,” the judge said.

The Court was dealing with a criminal case registered on a woman's complaint stating that the comment “jaane kitne dinon ke baad society me abb chand nikla (After ages, the moon has finally decided to show up in the neighborhood!)” posted by accused Dheeraj Gupta in response to the woman's photo amounted to sexual harassment. 

The remark was made in response to the complainant’s profile link shared on a WhatsApp group operated by residents of a housing society in Gurugram.

Seeking quashing of the FIR, Gupta's counsel argued that the “humorous” comment did not constitute any offence. It was neither a sexually coloured remark nor obscene in nature, the Court was told.

“Neither the words were obscene nor were intended to cause annoyance in a public place,” the counsel said. 

On the other hand, the complainant’s counsel submitted that she was serving as a principal in a government school and was a highly respected member of the community.

It was further alleged that the comment formed part of a deep-rooted conspiracy aimed at pressuring her to withdraw her candidature for the post of President of the Residents’ Welfare Association (RWA).

The Court at the outset clarified that posting of the message on a WhatsApp group amounts to making an utterance in a public place.

However, the Court clarified that every humiliating word by itself cannot be said to be obscene.

“While defining obscenity, the court has to be sensitive to the perspective of the modern day society and its changing views on obscenity,” the Bench said.

Having examined the WhatsApp comment and the context in which it was made, the Court said the words and the emojis were certainly not in good taste and may have the tendency of offending a woman.

However, the Court opined the message did not amount to obscenity as defined under Section 294 IPC.

“In order to attract the culpability of Section 294 IPC, the words used must be capable of arousing sexually impure thoughts in the mind of the person who heard the word or saw them, thus causing annoyance The message posted by the petitioner does not fall in the category. Though the words used are not in good taste and appear to have been used mockingly, they do not satisfy the definition of obscenity within the four corners of Section 294 IPC,” the Court said.

It added that the message, copied from a popular Bollywood song, was not capable of arousing impure thought. It further said that the subsequent message of the petitioner was more humorous, rather than insulting.

“The text messages do not contain lascivious or sexual content. The comments, though inappropriate, do not meet the legal definition of obscenity. As such, even though the WhatsApp group where the messages were posted would be a public place, no offence under Section 294 IPC would be made out," the judge said.

The Court also answered whether the message amounted to sexual harassment under Section 354-A of IPC.

It observed that the message had no sexual undertones. Further, the Court noted that the complainant was not even part of the WhatsApp group.

“The remark made in the group cannot be said to be targeted at the complainant, to amount to sexual harassment,” the Bench said.

Similarly, the Court ruled that the intention to insult the woman’s modesty and sense of decency was also missing.

“Mere mocking words and emojis posted by the petitioner on profile of complainant, without any nexus to her sexual dignity, cannot amount to an offence under Section 509 IPC,” it added.

Thus, the Court said that subjecting the accused to the rigmarole of a trial would only increase the burden of the courts and not lead to any fruitful result.

“Criminal prosecution of petitioner, on insufficient grounds at the whim of the complainant, cannot be allowed to continue,” the Court said as it quashed the case registered by Gurgaon police.

Advocates Aditya Sandhi and Lokesh Sharma represented the accused.

Assistant Advocate General Kshitij Bharti represented the State of Haryana.

Advocates Vishal Garg Narwana and Nancy Antwal represented the complainant.