Not Every Forward Can Be Interpreted For Creating Rift In Society; People Should Restrain From Forwarding Everything They Receive: Bombay HC

In a significant ruling, the Bombay High Court recently held that each forward of an objectionable post on WhatsApp or any other social media platform, cannot be interpreted to have been done to create unrest in the society or two groups of people.

The observation were made while quashing a First Information Report (FIR) lodged against a man, booked for forwarding an objectionable post against Dr Babasaheb Ambedkar to few of his WhatsApp contacts.

A division bench of Justices Vibha Kankanwadi and Santosh Chapalgaonkar said that people must exercise self restraint and avoid forwarding whatever they receive on their WhatsApp.

"We are aware about the sentiments of the people when such objectionable posts are created and then made viral. The reality in the life nowadays is that there is rampant use of smart phones and the WhatsApp messenger or any such App and the social media but certain persons are not that Technosavvy and in such circumstances they will land in trouble on some occasion. People are also interested in forwarding every stuff in the form of messages, photos, videos, reels etc. and even on many occasions not even watching that they will forward it. People are required to exercise self restraint in such situation and not to forward whatever is received on such App or social media platforms. Anyway, each forward of such message cannot be interpreted to create unrest in the society or two groups of people or two races," the bench said in its September 19.

The bench was hearing a plea filed by one Dnyaneshwar Wakale (34), a resident of Khultabad, Aurangabad who sought to quash the FIR lodged against him on August 14, 2018 under sections 295-A (outraging religious feelings) and 153-A (promoting enmity between two groups) of the Indian Penal Code (IPC).

It was the prosecution case, that the complainant received an objectionable post against Dr Ambedkar from one Rajesh Waghmare. The complainant found that the post insulted Dr Ambedkar and the community and thus enquired from Waghmare as to who sent the said post to him. Then, Waghmare informed that one Chitte had forwarded this post to him and also to one Raju Patole. On a further enquiry from the community, it was learnt that the applicant Wakale had made this objectionable post in a WhatsApp group called 'Only Bhau' (Only Brother). Therefore, the complainant lodged the complaint against Wakale.

The judges noted that neither the complainant, nor Waghmare were the members of the 'Only Bhau' group.

Now, the question is, unless the said post would have been forwarded by a member of said group, it would not have gone beyond the group, the judges noted.

"Note has to be taken that WhatsApp is a messenger, which is available for private messaging and calling, may be individual or in a group, it comes with end to end encryption. Therefore, personal messages and the calls are secured between sender and receiver. Therefore, unless it is sent by the member in respect of a group to another person who is not from the group, question of it going viral does not arise. Entire charge sheet does not show that there was any such effort to find out as to who was the said member of the group who had made it viral or allowed it to be sent to the person who is not the member of the group," the judges noted.

Further, the bench considered the statement of one Arun Aghade, the admin of the group, who stated that Wakale, had posted the objectionable photo in the group at around 4:18 PM on August 9, 2018. However, by 6:00 PM when other members of the group raised objections to the photo and asked Wakale to delete the same, he instead of removing, exited the group but he was later again added in the group so that he could delete the photo. However, he could not delete the same and apologised to the group members. Even the admin sought apology and advised his group members (more than 240 at the relevant time) not to indulge in activities that could hamper harmony between the two communities.

"Thus, his statement, therefore, is sufficient to say that there was no intention on the part of the applicant to outrage the religious feeling or defame anybody," the judges noted.

Further, the judges noted that almost everybody involved in the case, had been forwarding the photo to each other and therefore, it could not be segregated the friends of the complainant - Waghmare, Patole and Chitte, had no intention to outrage the religious feelings to defame Dr Ambedkar because the sae act (of forwarding) is alleged against the applicant.

"Therefore, only the applicant could not have been prosecuted. The friends of informant have not been made as an accused in the matter. Investigating agency cannot pick and choose the persons on the basis of their caste to come to a conclusion that they had no intention but only the applicant had intention," the judges said.

The judges expressed its anguish over the 'shoddy' probe in the case by the police. "The quality of investigation is of very low standard, though it is stated to have been made by the Police Officer of the rank Sub Divisional Police Officer. In spite of this, there is absolutely no basic investigation, that too, from the point of the fact that electronic evidence is involved in the matter."

While quashing of the FIR, the bench also noted the fact that the Judicial Magistrate, before whom the police file a chargesheet, took cognisance of the same by putting its stamp and committed the matter to the District court. The judges were shocked to noted that even the District court took cognisance of the chargesheet without there being a proper prior sanction as mandated under section 196 of the Criminal Procedure Code (CrPC).

"We are disturbed to note that Judges from the District Judiciary are not paying attention to the requirements under Sections 195, 196, 197, 198 of the CrPC. In recent times, we are coming across such orders which have been passed without considering these provisions. If these basic provisions are not adhered to, then it is prejudicial to the accused persons as they would be unnecessarily asked to face the trial when there was defect or illegality in passing of the order of taking cognizance of the offence itself. Therefore, we want to put the Judges of the District Judiciary on guard and direct them that they should consider these provisions whenever they are necessary and pass detailed orders in respect of the same," the bench made it clear.

Appearance:

Advocate RV Gore appeared for the Applicant.

Additional Public Prosecutor VK Kotecha represented the State.

Advocate PB Vikhe Patil was appointed for the Complainant.

Case Title: Dnyaneshwar Wakale vs State of Maharashtra (Criminal Application 2375 of 2019)

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