Can WhatsApp Messages Attract Prosecution Under IPC Sections 153A And 295A? Supreme Court To Consider

The Supreme Court has agreed to consider whether messages sent on services such as WhatsApp could attract criminal proceedings for outraging religious feelings and promoting enmity between groups.

The Court was in the process of hearing a Special Leave Petition by a local leader from Maharashtra against Bombay High Court's refusal to quash a First Information Report (FIR) under Sections 117, 153-A, 295-A, 504 and 505(3) of the Indian Penal Code, 1860. The FIR was registered after the Petitioner had posted certain messages in a WhatsApp group, which the High Court called "extremely offensive".

While issuing notice to the State of Maharashtra and staying the proceedings against Petitioner, a two-Judge Bench comprising Justice Hrishikesh Roy and Justice S.V.N. Bhatti recorded that it had heard arguments on "how far the exchanges in WhatsApp attracts the sections registered in the FIR." 

Senior Advocate Sunil Fernandes appeared for the Petitioner Santosh Dattaray Koli, who goes by the alias Bal Maharaj.

Fernandes cited the Supreme Court's Judgment in Pradmod Suryabhan Pawar v. State of Maharashtra and Anr. (2019) where the Court had made certain observations on WhatsApp messages attracting criminality. In the context of the facts of that case, the Court had said, "Without entering into a detailed analysis of the content of the WhatsApp messages sent by the appellant and the words alleged to have been spoken, it is apparent that none of the offences set out above are made out."

The Court further said, "The messages were not in public view, no assault occurred, nor was the appellant in such a position so as to dominate the will of the complainant. Therefore, even if the allegations set out by the complainant with respect to the WhatsApp messages and words uttered are accepted on their face, no offence is made out under the SC/ST Act (as it then stood). The allegations on the face of the FIR do not hence establish the commission of the offences alleged."

In the present case, the Petitioner was part of a WhatsApp group with 182 members belonging to various castes and religions. The High Court's Order notes that he posted various messages on the group which were "extremely offensive" and not proper to reproduce in the Order.

"However, it must be noted that a bare reading of these messages shows that it would hurt religious feelings of the members of a particular religion." the Court said, adding that "They have effect of promoting enmity, hatred or ill-will between two religions", the Court had held.

The Petitioner had submitted before the High Court that an essential ingredient of Section 295A was intention, which was absent in his messages, cited several Judgments on this aspect. He submitted that there was no requisite intention or mens rea on his part in posting those messages and no offence is made out.

He also cited the Supreme Court Judgment in Manzar Sayeed Khan v. State of Maharashtra & Anr. (2007) which holds that the "effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view."

The Court concluded, "The judgments relied on by the learned counsel for the Petitioner in fact do not support his case but support the prosecution. All the requisite intentions are clearly made out from those messages themselves."

The Petitioner was fully aware of the fact that members of "that particular religion" were members of that group and "these messages would definitely offend their religious feelings." the Court further concluded. "These messages had tendency of creating public disorder and disturbance of law. Any person of reasonable prudence would feel offended by reading these messages." 

"We absolutely find no reason to quash the FIR," the Court said, dismissing his petition.

Cause Title: Bal Maharaj alias Santosh Dattaray Koli v. State of Maharashtra [Special Leave to Appeal (Crl) 16225/2024]

Appearance: Senior Advocate Sunil Fernandes; Advocates Ajay Bhise, Deepali Kedar, Diksha Dadu and Nupur Kumarxt

Click here to read/download the Order