Law Web: Whether sending the personal messages on WhatsApp will amount to the utterance of obscene words in a public place?

Thus, the literature published on Website clearly indicates

that the WhatsApp messages sent by one person to another are end-toend

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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 557 OF 2018

Nivrutti Hariram Gaikwad, Vs The State of Maharashtra,

CORAM : T.V. NALAWADE &

M.G. SEWLIKAR, JJ.

Dated : 11.03.2020

JUDGMENT : [PER : M.G. SEWLIKAR, J.]

This petition is fled 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.

2. Facts giving rise to this petition are that 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 flthy 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 fled an F.I.R. on 5.3.2018

on the basis of which ofence under Sections 294, 500, 506 and 507 of

the Indian Penal Code has been registered against the petitioner.

3. Heard Shri. Shambhuraje V. Deshmukh, learned counsel for

the Petitioner Shri R.D. Sanap, learned A.P.P. for the Respondent No.1/

State and Shri. Kiran Nagarkar Advocate h/f, Smt. Smita S. Kulkarni

learned counsel for the Respondent No. 2.

4. Shri Deshmukh, the learned counsel for the petitioner

submitted that ofence 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. He submitted that 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. He submitted that the alleged messages have not been sent on

WhatsApp group.

5. Shri Sanap, the learned A.P.P. for respondent State

submitted that the messages sent on personal account on WhatsApp,

amounts to utterance of obscene words in public place. Therefore,

ofence under Section 294 of the I.P.C. is made out.

6. Section 500 and 506 of the I.P.C. are non cognizable

ofences.

7. Section 294 of the Indian Penal Code read as under :-

“Section 294 IPC - 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 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

fne, or with both."

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.

8. Thus, the essential ingredients of Section 294 of the I.P.C.

are the commission of obscene act at public place. The public place

has not been defned in the I.P.C. The Black's Law Dictionary defnes

public place as under :

“Any location that the local, state, or national

government maintains for the use of public, such

as a highway, park, or public building. ”

9. 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 literature in

this regard is published on the WhatsApp Website i.e.

Sttps://www.whatsapp.com/security/, it reads as under :

“WhatsApp Security

Privacy and Security is in our DNA

From day one, we built WhatsApp to help you

stay in touch with friends, share vital information

during natural disasters, reconnect with

separated families, or seek a better life. Some of

your most personal moments are shared with

WhatsApp, which is why we built end-to-end

encryption into our app. When end-to-end

encrypted, your messages, photos, videos, voice

messages, documents, and calls are secured

from falling into the wrong hands.

Security by Default

WhatsApp’s end-to-end encryption is available

when you and the people you message use our

app. Many messaging apps only encrypt

messages between you and them, but

WhatsApp’s end-to-end encryption ensures only

you and the person you’re communicating with

can read what is sent, and nobody in between,

not even WhatsApp. This is because your

messages are secured with a lock, and only the

recipient and you have the special key needed to

unlock and read them. For added protection,

every message you send has its own unique lock

and key. All of this happens automatically: no

need to turn on settings or set up special secret

chats to secure your messages.

Speak Freely

WhatsApp Calling lets you talk to your friends

and family, even if they’re in another country.

Just like your messages, WhatsApp calls are endto-

end encrypted so WhatsApp and third parties

can’t listen to them.

Messages that Stay with You

Your messages should be in your hands. That’s

why WhatsApp doesn’t store your messages on

our servers once we deliver them, and end-toend

encryption means that WhatsApp and third

parties can’t read them anyway.

See for Yourself

WhatsApp lets you check whether the calls you

make and messages you send are end-to-end

encrypted. Simply look for the indicator in

contact into or group info. ”

10. Thus, the literature published on Website clearly indicates