'Personal WhatsApp Account Not A Public Place':Sending Of Abusive Messages On Personal Account Not An Offence U/s 294 IPC,
Says Bombay HC [Read Judgment]
"WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons. If these messages had been posted on WhatsApp Group, in that case the same could have been called as public place because all the members of the group, will have access to those messages"
The Bombay High Court has held that sending of abusive messages on personal account of WhatsApp will not amount to utterance of obscene words in public place so as to invoke Section 294 of the Indian Penal Code.
The Division Bench of Justice TV Nalawade and Justice MG Sewlikar observed that WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons.
The allegation against the accused in the complaint filed by his wife was that he sent WhatsApp message to her calling her prostitute and that she earns money by doing business of prostitution. FIR was registered against him under Sections 294, 500, 506 and 507 of the Indian Penal Code. The contention of the accused was that sending of personal messages on personal account of WhatsApp will not amount to utterance of words at public place.
Referring to Section 294 IPC, the bench noted that one of the essential ingredients is the commission of obscene act at public place and in the instant case there is no utterance of words in any public place but the alleged obscene messages are sent on social media i.e. WhatsApp. Referring to a document about security and encryption pubished by Whatsapp, the bench said:
Thus, the literature published on Website clearly indicates that the WhatsApp messages sent by one person to another are end-to- end encrypted which means, only the sender of the message and the recipient of the message can read the messages. It also claims that nobody in between, not even WhatsApp, can read these messages. These messages are secured with lock and only the recipient and sender have special key needed to unlock and read them. It further claims that every message sent has its own unique lock and key. It also claims that the WhatsApp does not store the messages on server, once they are delivered. Thus, this literature available on the Website of the WhatsApp, makes it abundantly clearly that such types of messages are strictly personal messages and nobody even the WhatsApp can have access to these messages which means nobody except the sender and the recipient can read the messages. Thus, when these messages cannot be read by others, it ipso-facto goes to show that no third person nor even WhatsApp can have access to those messages. Therefore, WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons. If these messages had been posted on WhatsApp Group, in that case the same could have been called as public place because all the members of the group, will have access to those messages. It is not the prosecution case that the alleged obscene messages were posted on WhatsApp Group of which the petitioner and the respondent No. 2 and others are the members. Therefore, sending the personal messages on WhatsApp will not amount to utterance of obscene words in public place. Therefore, Section 294 of the I.P.C. cannot be invoked.
Though the bench quashed the part of FIR under Section 294 IPC, it refused to quash the FIR under Section 509 by observing thus:
To call a woman, even if she is one's own wife a prostitute and to call her that she earns money by indulging in prostitution amounts to insulting the modesty of a woman. Therefore, there is prima-facie evidence to indicate that the ofence falls under Section 509 of the I.P.C.