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
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.
11. However, on reading 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 ofence 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 ofence under Section 509 of the I.P.C. is made out.
12. With these observations, the application is disposed of.
(M.G. SEWLIKAR, J.) (T.V. NALAWADE, J.)
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