Each Forward Of Objectionable ‘Whatsapp Message’ Cannot Be Interpreted To Create Unrest To Attract Offence U/S 153A IPC: Bombay HC

The Court said that people are required to exercise self restraint and not forward whatever they receive on social media platforms.

The Court was hearing an Application filed u/s 482 CrPC seeking the quashing of criminal proceedings pending before Additional Sessions Judge arising out of a Criminal Case registered for the offences punishable under Sections 295-A, 153-A of the IPC and Section 3(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The bench of Justice Vibha Kankanwadi and Justice SG Chapalgaonkar observed, “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.”

Advocate RV Gore appeared for the Appellant and APP VK Kotecha appeared for the Respondent.

Brief Facts-

It is the case of the Applicant that the FIR indicated that a person named Rajesh Baburao Waghmare shared an objectionable post regarding Dr Babasaheb Ambedkar on the informant's mobile. After questioning Waghmare, it was revealed that the post originated from one Chitte and was forwarded by the Applicant in a WhatsApp group called "Only Bhau." The Applicant claimed that he unintentionally forwarded the post and apologised immediately upon realising the mistake. The police have not traced the source of the post, and the applicant argued that there was no intent to hurt any community. Therefore, the charges under Sections 153-A and 295-A IPC and Section 3(v) of the Atrocities Act are not applicable.

The Court observed, “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. For that purpose the investigation ought to have been till the point as to who had created the said photograph.”

The Court relied on the decision in Priya Prakash Varrier vs. the State of Telangana [2019 (12) SCC 432], where according to the Court it was held, “it should be proved that the alleged act of outraging the religious feelings or intending to outrage religious feelings should be deliberate and malicious. If the intention is missing then offence cannot be said to be proved or forthcoming.”

The Court observed, “Time and again, this Court is bringing it to the notice of Judges in the District Judiciary that they should write proper designation wherever it is involved. It reminds them as to under which provisions of law and Act they are exercising their powers. ‘District Judge’ is always referred for matters of Civil side and for matter of Criminal side it is ‘Sessions Judge’ or ‘Additional Sessions Judge’ and in case of special enactments, it would be either ‘Special Judge’ or designated Court under the relevant Act. The orders are not required to be passed without application of mind and mechanically even by a Sessions Judge.”

The Court further criticised the actions of the District Judiciary and said, “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 Code of Criminal Procedure. The embargo created under these provisions should be considered by them before taking cognizance.”

The Court observed, “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.”

Accordingly, the Court allowed the Criminal Application.