The issue is whether an administrator of Whatsapp group can be held criminally liable for committing offences punishable under Sections 354- A(1)(iv), 509 and 107 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000 for an objectionable post sent by a group member.
Facts
The Accused No.1 used filthy language against the non-applicant No.2. on the Whatsapp group of which the applicant is the administrator. The First Information Report was registered against the applicant and another with the accusations that despite Accused No.1 using filthy language against the non-applicant No.2, the applicant had not taken any action against the Accused No.1. The Investigating Agency recorded statements of the non-applicant No.2 and other witnesses, seized mobile phones of the non-applicant No.2 and Accused persons and forwarded them to the Forensic Laboratory for further examination.
Arguments before the Court- It is alleged that the applicant being administrator had not removed nor deleted Accused No.1 from the Whatsapp group. It is further alleged that the applicant had not asked Accused No.1 to submit an apology to the non-applicant No.2, on the contrary, the applicant expressed his helplessness. The non-applicant No.1 pursuance of notice of this Court, filed its reply stating that there is sufficient material available against the present applicant. It is further stated that considering the allegations against the applicant, prima facie ingredients of the offence alleged against the applicant are made out.
Court’s observation
The Court started discussing the functioning of the Whatsapp messaging service. The Court stated that once the group is created, the functioning of the administrator and the group members are the same. The only difference is that the administrator can add or delete members. The Administrator does not have the power to regulate, moderate or censor the content before it is posted on the group. Hence, he 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 between the member and the administrator. Common intention cannot be established in the case of Whatsapp service user merely acting as a group administrator. It cannot be expected of the administrator to presume or to have advanced knowledge of the criminal acts of the member of the group. The Court then moved on giving an explanation for each Section the applicant is liable under. Clause (iv) of sub-Section of Section 354-A of the IPC requires that a man should himself make sexually coloured remarks. The FIR nowhere alleges that the applicant made sexually coloured remarks against the non-applicant No.2. Hence, the ingredients of the offence are not fulfilled. The next offence alleged against the applicant is under Section 107 of the IPC. As the applicant had not instigated or intentionally aided by his act or illegal omission to the Accused No.1 to make sexually coloured remarks against non-applicant, the essential ingredients of Section 107 are not fulfilled. As far as Section 509 of the IPC is considered, it is necessary to show that the modesty of a particular woman has been insulted by a spoken word, gesture, or physical act. This offence cannot be made out against the applicant as it is the Accused No.1, who had used filthy language. Moving onto Section 67 of the Information Technology Act, 2000, a person must publish or transmit an obscene material in electronic form. The Court also referred to the definition of the intermediary under Section 2(w) of the Information Technology Act, 2000. The Court didn’t find any allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any obscene material. Lastly, the Court referred to the case of State of Haryana v. Bhajan in which Section 482 can be exercised by the Court, where the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused.
Court’s Judgement
The Court agreed that the allegations made in the FIR against the applicant do not disclose essential ingredients of any above-mentioned offence. Thus, the FIR and further proceedings against the applicant are quashed and set aside.
Click here to read the Judgement.
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