The Hon’ble High Court of Bombay in Nivrutti V. State of Maharashtra [Criminal Writ Petition No. 557 of 2018] held that sending abusive personal messages on WhatsApp will not amount to ‘Obscenity’ in a ‘Public Place’ and will not be considered as an offence u/s 294 of IPC.
The Division bench of Hon’ble Justices M.G. Sewlikar and T.V. Nalawade while quashing the FIR registered u/s 294 of IPC observed that “Section 294 of the I.P.C. requires that a) act done must be an obscene act and it must be done in any public place. Sub Section (b) of Section 294 of I.P.C. can be pressed into service if any one sings, recites or utters any word, song, ballad words, near any public place and Section 294 further requires that such obscene acts, song, ballad or utterance of words cause annoyance to others.”
It was further expounded by the Hon’ble Court that “In the case at hand, there is no utterance of words in any public place but the alleged obscene messages are sent on social media i.e. WhatsApp. The respondent No. 2 has alleged that the messages are uploaded on Facebook. The compilation produced by the respondent No. 2 shows that those are the WhatsApp messages and are not the messages uploaded on Facebook. WhatsApp messages sent on personal accounts are strictly personal. Nobody has access to those messages except the sender and the receiver.”
The Hon’ble Court made a reference to the privacy and Security Terms given on WhatsApp and noted that the literature published on the Website clearly indicated 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. “The 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.”
The Hon’ble court further observed that if the messages were posted on the WhatsApp Group then it would have been called a ‘Public Place’ since all the members of the group will have access to the same, hence sending personal messages on WhatsApp will not amount to utterance of obscene words in Public Place and for the reasons stated, Section 294 of IPC cannot be invoked.