The Bombay High Court recently ruled that offensive WhatsApp messages, sent personally, would not amount to the criminal offence of committing an obscene act under Section 294 of the Indian Penal Code (Nivrutti v State of Maharashtra)

The Court held,

"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." - Bombay High Court

The Court was dealing with a plea filed by a man to quash an FIR filed against him by his wife on allegations that they had verbally abused her over phone calls and WhatsApp.

The petitioner's wife had alleged that he would call her up and abuse her in filthy language. Further, it was alleged that he had sent her offensive personal WhatsApp messages and made phone calls to her relatives. This led her to file an FIR under Sections 294, 500, 506 and 507 of the Indian Penal Code.

When the husband's plea came up before the High Court, it was noted that the essential ingredients of Section 294 of the IPC was the commission of an obscene act at public place.

However, in the case at hand, the Court found that there was no utterance of words in any public place. Rather, the alleged obscene messages were sent on social media i.e. WhatsApp and that too, as a private message.

The court went on to note that “WhatsApp messages sent on personal accounts were strictly personal. Nobody has access to those messages except the sender and the receiver”, while relying on the literature published on the WhatsApp Website.

Since the literature published on the WhatsApp website clearly indicated that the messages sent by one person to another were end-to-end encrypted, only the sender and the recipient of the message could read the messages, remarked the Bench. When these WhatsApp messages could not be read by others, it could not seen as a public place, the Court said.

The Bench clarified that if these messages had been posted on a WhatsApp Group, the same could have been called as public place since all the members of the group would have access to those messages.

Since this case only involved personal WhatsApp messages, the Court concluded that Section 294 of the IPC could not be invoked. Therefore, the FIR filed against the petitioner was quashed to the extent that it contained a charge under this provision.

The Court proceeded to observe, however, that there appeared to be a prima facie case against the petitioner as far as other charges levelled in the FIR were concerned. Referring to the allegations made by the wife, the Bench observed,

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 offence falls under Section 509 of the IPC. - Bombay High Court

The Court therefore, quashed the FIR to the extent of Section 294, IPC and granted the prosecution liberty to continue investigation against the petitioner, as far as the charge under Section 509, IPC was concerned.