The main legal point established is that sending personal messages on WhatsApp does not constitute utterance of obscene words in a public place under Section 294 of the IPC, but insulting a woman's modesty through such messages may still constitute an offense under Section 509.

JUDGMENT :

M.G. SEWLIKAR, J.

1. This petition is fled under Article 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure for quashing of the F.I.R.

2. Facts giving rise to this petition are that the respondent No. 2 is the wife of the petitioner. She married petitioner on 14.5.2017. After marriage, the petitioner did not treat the respondent No. 2 well. He would beat her and would call her a prostitute and that she earns money by doing business of prostitution. It is further alleged that the petitioner married the respondent No. 2 for the sake of others as the petitioner is homosexual. On 1st January, 2018, the petitioner called her up and abused her in filthy language. Again on 27th and 28th February, 2018, he sent WhatsApp message to the respondent No. 2 calling her prostitute and that she earns money by doing business of prostitution. It is further alleged that the petitioner had made phone calls to his relatives also. Accordingly, she fled an F.I.R. on 5.3.2018 on the basis of which offence under Sections 294, 500, 506 and 507 of the Indian Penal Code has been registered against the petitioner.

3. Heard Shri. Shambhuraje V. Deshmukh, learned counsel for the Petitioner Shri R.D. Sanap, learned A.P.P. for the Respondent No.1/ State and Shri. Kiran Nagarkar Advocate h/f, Smt. Smita S. Kulkarni learned counsel for the Respondent No. 2.

4. Shri Deshmukh, the learned counsel for the petitioner submitted that offence under Section 294 of the I.P.C. will be attracted only if the obscene words are uttered in public place and that the obscene words should be of such a nature as to cause annoyance to others. He submitted that the WhatsApp messages are personal messages. Therefore sending of personal messages on personal account of WhatsApp will not amount to utterance of words at public place. He submitted that the alleged messages have not been sent on WhatsApp group.

5. Shri Sanap, the learned A.P.P. for respondent State submitted that the messages sent on personal account on WhatsApp, amounts to utterance of obscene words in public place. Therefore, offence under Section 294 of the I.P.C. is made out.

6. Section 500 and 506 of the I.P.C. are non cognizable ofences.

7. Section 294 of the Indian Penal Code read as under :-

“Section 294 IPC - Whoever, to the annoyance of others – (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

Section 294 of the I.P.C. requires that a) act done must be an obscene act and it must be done in any public place. Sub Section (b) of Section 294 of I.P.C. can be pressed into service if any one sings, recites or utters any word, song, ballad words, near any public place and Section 294 further requires that such obscene acts, song, ballad or utterance of words cause annoyance to others.

8. Thus, the essential ingredients of Section 294 of the I.P.C. are the commission of obscene act at public place. The public place has not been defined in the I.P.C. The Black's Law Dictionary defines public place as under :

“Any location that the local, state, or national government maintains for the use of public, such as a highway, park, or public building.”

9. In the case at hand, there is no utterance of words in any public place but the alleged obscene messages are sent on social media i.e. WhatsApp. The respondent No. 2 has alleged that the messages are uploaded on Facebook. The compilation produced by the respondent No. 2 shows that those are the WhatsApp messages and are not the messages uploaded on Facebook. WhatsApp messages sent on personal accounts are strictly personal. Nobody has access to those messages except the sender and the receiver. The literature in this regard is published on the WhatsApp Website i.e. Sttps://www.whatsapp.com/security/, it reads as und