Nivrutti vs. The State of Maharashtra

In the High Court of Judicature at Bombay
Criminal Writ Petition No. 557 Of 2018
Petitioner
Nivrutti
Respondents
The State of Maharashtra
Date of Judgement
11th March 2020
Bench
Justice M.G. Sewlikar

Facts of the Case:

The respondent No. 2 is the wife of the petitioner. She married petitioner on 14.5.2017. After marriage, the petitioner did not treat the respondent No. 2 well. He would beat her and would call her a prostitute and that she earns money by doing business of prostitution. It is further alleged that the petitioner married the respondent No. 2 for the sake of others as the petitioner is homosexual. On 1st January, 2018, the petitioner called her up and abused her in flirty language. Again on 27th and 28th February, 2018, he sent WhatsApp message to the respondent No. 2 calling her prostitute and that she earns money by doing business of prostitution. It is further alleged that the petitioner had made phone calls to his relatives also. Accordingly, she filed an F.I.R. on 5.3.2018 on the basis of which offence under Sections 294, 500, 506 and 507 of the Indian Penal Code has been registered against the petitioner.

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. 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. The petition is filed under Article 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure for quashing of the F.I.R.

Issues:

1. Whether sending of personal messages on personal account of WhatsApp will not amount to utterance of words at public place?
2. Whether these messages are secured with lock and only the recipient and sender have special key needed to unlock and read them?

Arguments Advanced

Arguments from the Petitioner:

1. The offence under Section 294 of the I.P.C. will be attracted only if the obscene words are uttered in public place and that the obscene words should be of such a nature as to cause annoyance to others.
2. The WhatsApp messages are personal messages. Therefore sending of personal messages on personal account of WhatsApp will not amount to utterance of words at public place. The alleged messages have not been sent on WhatsApp group.
3. 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.

Arguments from the Respondents:

1. The messages sent on personal account on WhatsApp, amounts to utterance of obscene words in public place. Therefore, offence under Section 294 of the I.P.C. is made out.
2. Those are the WhatsApp messages and are not the messages uploaded on Facebook. WhatsApp messages sent on personal accounts are strictly personal.

Judgment:

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.

All the messages alleged to have been sent by the petitioner to the respondent No. 2; it appears that the petitioner has called the respondent no. 2 a prostitute. 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 I.P.C. In view of this, F.I.R. is quashed to the extent of Section 294 of I.P.C. However, the prosecution is at liberty to carry out investigation to ascertain whether the offence under Section 509 of the I.P.C. is made out.

With these observations, the application is disposed of.

“The views of the authors are personal“