Law Web: When prosecution for posting of emoji on whatsapp group can be quashed?

When no cognizable offence is found on the face of the

complaint, this Court is of the view that the First Information Report is

liable to be quashed. In the case on hand the petitioners and the second

respondent are the members of a whatsapp group. Everyone has a right to

express their feelings and share their idea. The face of crying smiley is to

comment about the idea of second respondent in publishing or uploading a

video of complaints made by BSNL customers regarding deficiencies in BSNL

coverage. Every person has got indefeasible right to express what he feels.

The petitioners who are working as executives and staff of BSNL along with

second respondent ought not to have indulged in posting such emoji in the

interest of BSNL since whatsapp group is formed to promote team spirit. Such

complaints by the second respondent who is working as a Divisional Engineer

(Rural) will pave way for other complications and friction among members

which will be detriment to the interest of BSNL. This Court wanted the

petitioners to express their regret as the de-facto complainant in her

individual perception felt offended by the posting of such crying smiley.

Accordingly the first petitioner has filed an affidavit on behalf of all the

petitioners, recording their regret for posting such smileys. The matter

should rest here and it will be neither in the interest of justice to permit

such complaints to stay. When the complaint does not disclose any offence as

indicated above, the petitioners will be put to serious prejudice and

hardship in case they are forced to face trial. Hence, this Court is

inclined to quash the First Information Report in Crime No.206 of 2017 on the

file of the first respondent.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Pronounced on: 05.06.2018

CORAM

MR.JUSTICE S.S.SUNDAR

CRL.O.P.(MD)No.3110 of 2017

and

Crl.M.P.(MD) Nos. 2366 and 6773 of 2017

I.Linga Bhaskar -Vs- The State through the Inspector of Police,

The above Criminal Original Petition is filed to call for records

pertaining to FIR in Crime No.206 of 2017 on the file of the first respondent

police and to quash the same.

2.The petitioners in the Criminal Original Petition are accused 1

to 19, 21 to 27, 29 to 31, 33 to 49 as per the complaint.

3.The brief facts that are necessary for the purpose of disposing

of this petition are as follows:

3.1.All the petitioners are working in BSNL Department and the

second respondent / de-facto complainant is also in BSNL Department as

Divisional Engineer (Rural). It is stated that the petitioners as well as

the second respondent are all members of an official whatsapp group.

3.2.It is admitted that the official whatsapp group was intended

to be used by the members for sharing of any innovative works / ideas for

improving the quality of service of BSNL.

3.3.It is admitted that the second respondent has posted the

video footage of three customers who have spoken about their grievance about

the BSNL coverage. It appears that the petitioners are mainly indoor staff

of BSNL whereas the second respondent is an officer engaged as an outdoor

staff. Since the conversation uploaded by the second respondent was taken as

an act to degrade the indoor staff, the petitioners and few others have

posted an emoji, namely, a smiling face with tears. Some of the petitioners

felt that the conversation uploaded by the second respondent is likely to de-

motivate the executives and is likely to tarnish the image of BSNL, they

requested the members of SNEA by sending similar emojis in the whatsapp group

to be shared by other members of the group. Following this, the petitioners

who are the accused in the complaint have posted the same emoji, a cartoon

face with joy but tears in the eyes. Annoyed by this, the second respondent

gave a complaint.

3.4.In the complaint, the second respondent has stated that her

husband is a practicing Advocate in Tuticorin District for more than 25 years

and that she has two children. She further described herself as a Divisional

Engineer (Rural) in BSNL. She states in her complaint that she was also

inducted as a member of whatsapp group which was intended to share the

complaints and deficiencies in the service of BSNL and to rectify them and

improve the quality of service. The second respondent further stated in her

complaint that as per the instructions of her superiors only, the recorded

video of three of BSNL customers in relation to BSNL coverages was uploaded

by her in the said whatsapp group. The allegations in the complaint is that

the recorded conversation of BSNL customers uploaded by her is wrongly

understood by the petitioners as one to degrade their efficiency and that

they started retaliating the complainant and did this with an intention to

humiliate her by posting the annoying emojis one after another. It is

further stated that the accused 1 and 2 and other petitioners have conspired

together and posted the smiley faces with tears through whatsapp against the

second respondent. Since the meaning of the emoji is laughing till you cry,

the second respondent described the posting of crying smiley faces in the

whatsapp group as a most annoying thing intended to humiliate the second

respondent. In the complaint, she further referred to the further messages

sent by some of the petitioners requesting all members to send the same

smiley face. It is further stated in the complaint that because of the

posting of crying smiley faces against the second respondent, she was put to

mental agony and hence, she could not sleep and she was crying all the night

on 31.07.2016. In the complaint, the petitioners 1 and 2 were shown as

persons who have induced other members to post crying smiley faces with an

intention to humiliate the second respondent. The details of posting of such

emojis by other petitioners was given in the complaint. A case was

registered for offences punishable under Section 4 of Tamil Nadu Prohibition

of Harassment of Women Act, 2002, Section 3 (1)(r), 3(1)(t), 3(1)(u) of

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2015 and Section 67 of Information Technology Act. Challenging the

First Information Report, which is registered in Crime No.206 of 2017 on the

file of the first respondent, the above Criminal Original Petition is filed.

4.The petitioners have stated that the second respondent had

earlier preferred a complaint before the Superintendent of Police which was

referred to the District Crime Branch, Tuticorin. It is further stated that

after summoning all the 29 persons, who are shown as accused, the

Superintendent of Police, Crime Branch, found that no cognizable offence is

made out. It is the case of the petitioners that the emojis had been posted

in response to the video posted by the second respondent in the whatsapp

group showing their disapproval but not to defame or humiliate the second

respondent. Learned Senior Counsel appearing for the petitioners submitted

that the posting of crying smiley faces were to express their feelings in

response to video footage and that it is not intended to harm the

individual.

5.The learned Senior Counsel appearing for the petitioners

submitted that from the reading of the complaint no offence under Section 4

of Tamil Nadu Prohibition of Harassment of Women Act, 2002, is attracted. It

is further submitted that the entire case as per the compliant do not attract

Section 3 (1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2015 and Section 67 of Information

Technology Act, 2000. Since the emoji ? a laughing face with tears shows

mere expression of the petitioners' feeling in response to a video footage

uploaded by the second respondent, this cannot be taken so seriously. It is

further stated that the petitioners have not committed any offences as

alleged in the complaint. It is also submitted by the learned counsel

appearing for the petitioners that the second respondent herein had already

ventilated her remedy by way of departmental proceedings and by forwarding a

complaint to the Scheduled Caste and Scheduled Tribes Protection Wing. It is

further submitted that the authorities concerned have categorically found

that no prima facie case is found on the complaint of the de-facto complaint.

The petitioners relied upon the communication from the General Manager,

Tuticorin, addressed to the de-facto complainant dated 11.01.2017 in response

to her complaint against the petitioners.

6.The learned counsel appearing for the second respondent,

however, submitted that the emoji posted by the petitioners is a face with

tears of joy which is understood by the public as a most annoying emoji. It

is the contention of the learned counsel appearing for the second respondent

that lots of smileys have definite meaning and the face with tears of joy was

to convey hatred and to humiliate the second respondent.

7.In this case, a face with tears of joy was posted by the

petitioners who are all members of a whatsapp group in response to the video

footage that was uploaded by the second respondent. It is admitted that the

emojis are posted to convey numerous feelings. It is stated that emoji is

used when something is funny or laughable. In the present context, where the

petitioners and the second respondents are members of the same whatsapp group

and they are all employees of BSNL, the question is whether the petitioners

have committed the offence alleged against them. When it is accepted that an

emoji is sent to express ones feeling about something, it cannot be treated

as an overt act on others. It is a comment may be intended to ridicule or to

show one's disapproval in a given context. Section 67 of Information

Technology Act reads as follows:

?67. Publishing of information which is obscene in electronic form. - Whoever

publishes or transmits or causes to be published in the electronic form, any

material which is lascivious or appeals to the prurient interest or if its

effect is such as to tend to deprave and corrupt persons who are likely,

having regard to all relevant circumstances, to read, see or hear the matter

contained or embodied in it, shall be punished on first conviction with

imprisonment of either description for a term which may extend to five years

and with fine which may extend to one lakh rupees and in the event of a

second or subsequent conviction with imprisonment of either description for a

term which may extend to ten years and also with fine which may extend to two

lakh rupees.?

8.From the reading of Section 67 of Information Technology Act,

it can be seen that this provision prohibits publication of information that

is obscene in electronic form. The prohibition against the obscenity as

contemplated under Section 67 of the Information Technology Act in public

interest is violated only when a person publishes or transmits any material

which is lascivious or appeals to prurient interest or if its effect is such

as to tend to deprave and corrupt persons who are likely to read, see or hear

the matter contained in those materials. In this case, certainly, the

allegations do not indicate any publication of obscene material which is

lascivious or appeals to prurient interest. The object of Section 67 of

Information Technology Act is, therefore, about a publication revealing a

over sexual interest or desire or encouraging an excessive interest in sexual

matters. Hence, this Court is of the clear opinion that the complaint do not

disclose an offence under Section 67 of the Information Technology Act.

9.Section 4 of the Tamil Nadu Prohibition of Harassment of Women

Act, reads as follows:

"Section 4: Penalty for harassment of woman: Whoever commits or participates

in or abets harassment of woman in or within the precincts of any educational

institution, temple or other place of worship, bus stop, road, railway

station, cinema theatre, park, beach, place of festival, public service

vehicle or vessel or any other place shall be punished with imprisonment for

a term which may extend to three years and with fine which shall not be less

than ten thousand rupees."

10.First of all, there should be harassment and such harassment

should be within the places which are indicated in Section 4 of the Act.

Harassment of women is defined under Section 2(a) of the Act. Harassment

means any indecent act or by a man which causes or is likely to cause

intimidation, fear, shame or embarrassment, including abusing or causing hurt

or nuisance or assault or use of force. The Act is intended to punish person

who does something in order to outrage women's modesty. In several decisions

of the Hon'ble Supreme Court, harassment of women has been dealt with. The

allegation is about the posting of an emoji in a whatsapp group shared by the

group of persons. The posting of emoji is to express ones feeling. It is an

act that may offend the second respondent but that is not an act attracting

Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998.

11.Finally, the question is whether the complaint makes out a

case under Section 3(1)(r)(t)(u) of Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2015. Though it is stated in the

complaint that the second respondent belongs to a community listed under the

provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)

Act, 2015 and the provisions can be applied, the allegations made in the

complaint do not attract Section 3(1)(r) or 3(1)(t) or 3(1)(u) of Scheduled

Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.

In this case, it is not the case in the complaint that the smiley was

intended to humiliate the second respondent for she being a member of

Scheduled Caste / Scheduled Tribes. In such circumstances, this Court is

unable to find any reason to sustain the complaint as one attracting the

provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015. It is also admitted in this case that some of the

petitioners belong to SC/ST community. The reading of the entire contents of

the FIR and the allegations made against the petitioners do not attract

Section 3(1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2015.

12.When no cognizable offence is found on the face of the