Unless Recipient Chooses To Forward Message On WhatsApp, They Cannot Be Held Liable For Defamation: Bombay High Court

A WhatsApp message is encrypted end to end and it can only be read by the person, who received it unless the recipient chooses to forward the message, thus in such a situation a sender cannot be booked for defaming a person in society, the Bombay High Court held recently. 

For the 'illegal arrest' of the applicant, the High Court ordered the Investigating Officer (IO) to pay Rs 2 lakhs and the complainant to pay Rs 50,000 to the applicant. 

A division bench of Justices Vibha Kankanwadi and Santosh Chapalgaonkar quashed an FIR lodged against a man for allegedly defaming his in-laws by sending a 'defamatory' post on a WhatsApp message to one of the relatives of the complainant.

The bench noted that the complainant is the brother-in-law (wife's brother) of the applicant and that he works as a police constable in Hingoli District. It noted that the complainant's case was that the 'defamatory' message against his family was sent to one of their relatives and thus this shows the applicant's 'intent' to defame the in-laws.

"We have observed in the past also that if the message is on WhatsApp, which is encrypted end to end,unless the recipient chooses to forward it, it can only be read by the person who receives it. The sender then cannot have or intended to have intention to defame a person in society. Here, the First Information Report does not say that, that message was put on some group or to various persons individually," the bench held in its order passed on October 23.

As per the complainant, the applicant in the 'message' in question, stated that his wife used to shoot 'obscene' clips of the couple together and circulate them in her family group, the complainant and his family have harassed the applicant and his family etc. The contents of the message on WhatsApp, the bench said cannot amount to an offence under Section 67-A of the Information Technology (IT) Act, which criminalises publication, transmission, causing to publish or transmit in electronic form any material that contains sexually explicit act or conduct.

How Police Invoked Section 66-A of IT Act Despite It Being Declared Unconstitutional?

In its order, the judges questioned how the police arrested the applicant on August 6, 2024 midnight, under the charges of section 66-A of the IT Act despite it being declared unconstitutional by the Supreme Court.

It is beyond imagination that before the arrest the IO will not apply his mind, as to which are sections those are invoked, what is the punishment, that is, prescribed and whether he can make a legal arrest in such situations, the bench observed.

"The realisation of the wrong section, after the arrest of a person, would be a suicide attempt by an Investigating Officer, because he is bound to follow the law before and at the time of effecting arrest," the judges underlined.

The Investigating Officer, the bench emphasised, should take note of Section 41-A of the Criminal Procedure Code (CrPC) and the decisions in Arnesh Kumar vs State of Bihar and Satender Kumar Antil vs Central Bureau of Investigation. These two decisions, mainly will have to be strictly adhered to by the IO, the judges said.

"The IO cannot arrest a person for committing an offence which was declared unconstitutional by the Supreme Court. That means, it was not in books at the time of the arrest of that person. At the cost of repetition, we would once again observe that in spite of declaration of Section 66-A of the I.T. Act being unconstitutional still the offences are being registered. This is the indication of high handedness of the police machinery in utter disregard to the law laid down by the Supreme Court. Certainly, when this arrest is made at midnight, it is in total violation of the personal liberty enshrined under the Constitution of India," the bench observed.

Magistrates Cannot Pass Mechanical Orders

Further, the judges noted that despite having no 'reason or ground' to arrest the applicant, the IO proceeded to produce him before the Judicial Magistrate, who too did not examine if the arrest was necessary and whether it was under the provisions of law or not. 

"It ought to have been seen by the Magistrate that whether arrest is legal before he takes the said accused under Magisterial Custody. The said order passed by the concerned Magistrate is without application of mind. Though he has released the accused on bail on same day, it was his duty to consider the said legal position. We have constrained to observe, taking into consideration the recent experiences, that the Magistrates including the Judges who are having powers of Magistrate like the Special Courts (before whom the accused persons are produced after arrest) are not considering the ratio laid down in Arnesh Kumar and Satender Kumar Antil seriously. Mechanical orders are passed without considering whether there is compliance of the mandatory provisions and requirements by the Investigating Officer," the bench said.

"We deprecate such kind of practice," the bench emphasised while adding that the Magistrates should avoid such situation in view of the observations in Arnesh Kumar, when directions are given that even the Magistrates will be held responsible for any such negligence.

With these observations, the bench quashed the FIR against the applicant.

Appearance:

 Advocate BS Dhawale appeared for the Applicant.

Additional Public Prosecutor AR Kale represented the State.

Advocate SE Shekade represented the Hingoli Police Officers.

Case Title: Ashwinkumar Sanap vs State of Maharashtra (Criminal Application 2908 of 2024)

Citation: 2024 LiveLaw (Bom) 573

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