In a recent judgement, the Bombay High Court bench comprising Justice Vibha Kankanwadi and Justice S.G. Chapalgaonkar addressed the legal consequences of forwarding objectionable content on social media, particularly under the Indian Penal Code (IPC) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989(Atrocities Act). The case involved a WhatsApp message that allegedly hurt the religious sentiments of the complainant and his community, prompting an examination of the intent and liability of individuals forwarding such content.
The case at hand was initiated by an FIR filed after a member of the group ‘Only Bhau’ forwarded an objectionable photograph concerning Dr. Babasaheb Ambedkar. The informant, Fakirrao Asaram Bhalerao, received the message through another individual, Rajesh Baburao Waghmare. According to Waghmare, the message had originated from another individual named Chitte, and was then forwarded by the applicant, Dnyaneshwar Rohidas Wakale.
The crux of the applicant’s defence lay in the argument that he had no intention to hurt any community. He claimed that the message was forwarded by mistake, and upon realising its offensive nature, he immediately apologised in the WhatsApp group. Wakale argued that since the origin of the message had not been traced by the police, holding him accountable for forwarding it, without malicious intent, was unjust. His application under Section 482 of the Code of Criminal Procedure (CrPC) sought to quash the criminal proceedings pending before the Additional Sessions Judge for offences under Sections 295-A and 153-A of the IPC and Section 3(v) of the Atrocities Act.
- Section 295-A of IPC: This section criminalises deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.
- Section 153-A of IPC: This provision pertains to promoting enmity between different groups on grounds of religion, race, or other factors, and is aimed at preserving communal harmony.
- Section 3(v) of the Atrocities Act: This section penalises any act committed with the intent to humiliate or degrade a member of a Scheduled Caste or Scheduled Tribe.
The Bench made several key observations regarding the nature of the offence and the intention behind forwarding the objectionable message. A critical part of the Court’s reasoning was drawn from past judgments, such as Priya Prakash Varrier vs. State of Telangana [2019 (12) SCC 432] and Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar [AIR 2017 (SC) 2392]. In these cases, the Supreme Court had emphasised that for offences under Sections 153-A and 295-A to stand, the intent behind the act must be deliberate and malicious. Without this element, mere forwarding of a message, even if offensive, could not attract these penal provisions.
The Court emphasised that the investigating agency had not even till today traced the origin of the post, a significant lapse in the investigation. Moreover, individuals who had previously forwarded the same post were not prosecuted, raising concerns of selective investigation. The Court noted, “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.”
Furthermore, the Court criticised the District Judiciary for not applying due diligence while taking cognizance of the case, particularly regarding the need for prior sanction under Section 196 of the CrPC. This section mandates government sanction before taking cognizance of certain offences, including those under Sections 153-A and 295-A of the IPC. The Court found that this sanction had not been obtained in the present case, rendering the proceedings flawed from the outset.
A recurring theme in the Court’s judgement was the responsibility of individuals using social media platforms like WhatsApp. The judgement reflected on how individuals are often quick to forward messages without fully understanding their content or potential consequences. The Court remarked, “People are required to exercise self restraint in such situations and not to forward whatever is received on such Apps or social media platforms.”
In light of the inadequate investigation and lack of intent to incite hatred or hurt religious sentiments, the Bombay High Court exercised its powers under Section 482 of the CrPC to quash the proceedings against the applicant. The Court concluded that as per State of Haryana and others vs. Ch. Bhajan Lal and others [AIR 1992 SC 604] it would be unjust to compel the applicant to stand trial, especially when the investigation had failed to trace the originator of the post and had selectively prosecuted only certain individuals.
Case Details : Dnyaneshwar Rohidas Wakale v. The State of Maharashtra Judgement
Advocates for the Appellant: Mr.R V Gore
Advocates for the Respondent: Mr. V K Kotecha, APP and Mr. P B Vikhe Patil
