Photo Showing Nudity & Disrespect To National Flag; Prima Facie Case Made Out When Accused Remained Admin & Did Not Leave WhatsApp Group: MP High Court

Madhya Pradesh High Court has recently held that when the accused did not leave the WhatsApp Group where objectionable content was shared and remained as the Group Admin, these reasons would be sufficient to establish a prima facie case against him.

The single judge bench of Justice Prem Narayan Singh refused to allow the petition preferred by the accused to quash an FIR filed for offences under Sections 124A, 153A and 295A of Indian Penal Code, Section 67A of Information Technology Act and Section 4 read with Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986.

“In this regard, Section 33 of IPC mandates that “The word “act” denotes as well a series of acts as a single act : the word “omission” denotes as well as series of omissions as a single omission .” In this way, inasmuch as, the petitioner had not left the WhatsApp group and remained in group as admin, the prima-facie case regarding the aforesaid offences made against him”, the court held, after referring to Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) & Amit Kapoor v. Ramesh Chander (2012).

The accused has been arraigned for being the admin of a WhatsApp Group where a nude photo of a lady along with the National Flag was shared, allegedly inciting the religious sentiments of Hindus.

“At the juncture of framing of charges, the Court has to prima facie examine whether there is sufficient ground for proceeding against the accused. Nevertheless, the Court is not expected to evaluate or analyse the findings in order to arrive at the conclusion that the material furnished by the prosecution are sufficient to convict the accused or not? In the case at hand, the findings of learned trial Court regarding prima facie case against the accused persons appear to be infallible”, it was finally noted in the court order.

The bench sitting at Indore also noted that the jurisdiction of the High Court as a revisional court is limited. Merely because of 'equitable considerations', the revisional court has no power to reconsider the matter and pass a different order in a routine manner, the court added about the impugned order passed by Sarangpur Sessions Judge.

The mobile phone allegedly involved in the commission of the offence was seized from the accused/petitioner. The photo was shared on the WhatsApp group on 14.02.2018 whereas the mobile phone was seized from the possession of the accused/petitioner on 16.02.2018.

Before the High Court, the additional advocate general appearing for the state contended that the accused can be held liable for the offences since he did not leave the group and remained in the group after seeing the objectionable photographs, even if it is assumed that he became the group admin by default after other group admins left the chat.

In turn, the petitioner contended that the FSL report indicated that the phone was not in running condition. However, since the FSL report did not clarify as to whether the phone was in running condition or not on the date on which the WhatsApp photo was shared, the court added that such type of defence cannot be considered at the stage of framing charges as laid down in State of Orissa v. Debendranath Padhi (2004). In this case, the apex court had held that a 'roving and fishing inquiry is impermissible' at the stage of framing of charges.

Additional Advocate General also relied upon Mohd. Imran Malik v. State of U.P. & Anr (2022 LiveLaw (AB) 83) where an application under Section 482 Cr.P.C was dismissed by the High Court based on the petitioner's status as a 'group admin' and as a co-extensive member of the group where the objectionable photo was shared.

Case Title: Juned S/o Salim Khan v. The State Of Madhya Pradesh Station House Officer Thr.Ps. Talen & Ors

Case No: Criminal Revision No. 4468 of 2018

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