Kishor v. State of Maharashtra
In the High Court of Bombay
Crl. A. 573/2016
Before Justice Z A Haq and Justice Amit B Borkar
Decided on March 01, 2021

Relevancy of the case: Application to quash criminal proceedings against the admin of a WhatsApp group

Statutes and Provisions Involved

• The Information Technology Act, 2000 (Section 2(w), 67)
• The Indian Penal Code, 1860 (Section 354A(1)(iv), 509, 107)
• The Code of Criminal Procedure, 1973 (Section 482)

Relevant Facts of the Case

• The applicant (accused number 2) in the present case was an administrator of a WhatsApp group, in which accused number 1 allegedly used filthy language against the non-applicant number 2.
• Accused number 1 did not apologise for the same. Aggrieved non-applicant number 1 expressed his concern regarding the incident to the applicant, who then expressed his helplessness.
• Subsequently, non-applicant number 1 filed a first information report against accused number 1 and the applicant.
• The investigation agency recorded statements, forwarded seized phones of the applicant, accused number 1, and non-applicant number 1 thereby forwarding it to the forensic lab for further examination. After examination, the investigating agency filed a charge-sheet before Judicial Magistrate First Class, Arjuni-Morgaon.
• The applicant has filed the present application challenging the validity of the charge-sheet and continuation of proceedings against him.

Opinion of the Bench

• The court observed that the admin of a WhatsApp group does not have the power to regulate, moderate or censor the content before someone posts it on the group. The court cannot hold them vicariously liable for an act of a member of the group who posts objectionable content unless it is shown that there was a common intention. There is no common intention established in this case.
• Further, to apply Section 67 of the Information Technology Act, 2000 in the present case, a person must publish or transmit or cause to publish or transmit any obscene material in electronic form. After the perusal of the charge sheet and the first information report, it is pertinent that the accused had not published or transmitted any obscene material on the WhatsApp group.
• The allegations against the applicant do not fulfil the definition of intermediary, as per Section 2(w) of the Information Technology Act, 2000. Thus, the court is satisfied that the applicant did not act as an intermediary in publishing or transmitting any obscene material in electronic form in the WhatsApp group.

Final Decision

• Application allowed.
• Pending proceedings quashed.

This case summary has been prepared by Shubhangi Gehlot, an undergraduate student at Law Faculty, Maharaja Sayajirao University of Baroda, during her internship with The Cyber Blog India in May/June 2021.