‘Chand nikla’: Why Punjab and Haryana High Court shielded man over post against woman on society WhatsApp group

“Though the words used are not in good taste and appear to have been used mockingly, they do not satisfy the definition of obscenity within the four corners of Section 294 IPC,” the court’s order passed on February 23 read.

What was the case?

• The complainant woman alleged that some residents of her housing society were operating a WhatsApp group wherein the accused, along with several persons from the society, was a member.
• It was alleged that a member of the housing society posted her profile photo on the WhatsApp group.
• The complainant submitted that the accused passed a lewd, sexually coloured remark on her photo.
• It was alleged that due to the remark on a ‘public platform’, she felt embarrassed, sexually harassed, humiliated, insulted and annoyed and that it adversely affected her image in the public.
• Following the complaint, the accused was booked under Section 120B (criminal conspiracy) as well as sections 294, 354A and 509 of the Indian Penal Code (IPC).

Court’s observations

• The message posted in the WhatsApp group was not a personal message from the petitioner. More than two persons were members of the group.
• Though WhatsApp messages sent by one person to another are end-to-end encrypted and can be read only by the sender and recipient of the message, when a message is sent in a group, where it can be accessed and read by all the members of the group, such messages cannot be termed private or personal, and posting messages in the WhatsApp group would amount to making an “utterance in a public place” within the meaning of Section 294 (obscene acts and songs) of the IPC.
• Every humiliating word by itself cannot be said to be obscene. While defining obscenity, the court has to be sensitive to the perspective of modern-day society and its changing views on obscenity.

• In other words, to attract the culpability of Section 294, the words used must be capable of arousing sexually impure thoughts in the mind of the person who heard the word or saw them, thus causing annoyance. The message posted by the petitioner does not fall in that category.
• Though the words used are not in good taste and appear to have been used mockingly, they do not satisfy the definition of obscenity within the four corners of Section 294.
• The text messages do not contain lascivious or sexual content. The comments, though inappropriate, do not meet the legal definition of obscenity.
• As such, even though the WhatsApp group where the messages were posted would be a public place, no offence under Section 294 would be made out.

Remark ‘not sexually coloured’

• The petitioner’s message, having no sexual undertones, cannot be termed a sexually coloured remark. Therefore, the offence under IPC Section 354A (sexual harassment) is also not made out. More so, when the complainant was not even a part of the WhatsApp group.
• The remark made in the group cannot be said to be targeted at the complainant, to amount to sexual harassment.
• To attract IPC Section 509, the words used should be such as would insult the modesty of the complainant.
• The criminal intention of the petitioner to insult the modesty of the complainant and her sense of decency, being a woman, is clearly missing.
• Mere mocking words and emojis posted by the petitioner on the profile of the complainant, without any nexus to her sexual dignity, cannot amount to an offence under Section 509.
• Subjecting the petitioner to the rigmarole of a trial, which may take years to conclude, would only increase the burden of the courts and would not lead to any fruitful result.
• Criminal prosecution of petitioner, on insufficient grounds at the whim of the complainant, cannot be allowed to continue.