The Bombay High Court has held that abusive messages sent on Whatsapp does not amount to obscenities in a public place and therefore is not punishable under Section 294 of the Indian Penal Code.
Section 294 of the IPC states that Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
Justices. T.V. Nalawade and M.G. Sewlikar of the Aurangabad bench of the Bombay High Court held 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. and nobody in between, not even WhatsApp, can read these messages.
The case relates to one “Nivrutti” whose wife Pooja Nkivrutti Gaikwad’ lodged an F.I.R under section 294, 500, 506 and 507 of the Indian Penal Code after being brutally treated by her husband and also for being called as a “prostitute” verbally and through texts. It was further alleged that the petitioner married the respondent under pressure from others as the petitioner is homosexual. During the course of action, the counsel for the petitioner submitted that 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.
The bench said Whatsapp messages are secured with lock and only the recipient and sender have special key needed to unlock and read them. 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, the bench said.
The court further held that after reading all the messages alleged to have been sent by the petitioner to the respondent, 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. “
The court however said that the 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.Saying so, it disposed off the case.