Saturday, 9 June 2018

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
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.  Accordingly, this Criminal Original Petition
is allowed and the First Information Report in Crime No.206 of 2017 on the
file of the first respondent is quashed.  Consequently, connected
miscellaneous petitions are closed.


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