An administrator of a Whatsapp group cannot be held vicariously liable for objectionable content posted by a member, and the essential elements of the alleged offenses must be fulfilled to establish criminal liability.

JUDGMENT

AMIT B.BORKAR,J. - Heard.

2. Rule. Rule is made returnable forthwith.

3. By this application under section 482 of the Code of Criminal Procedure, the applicant lays challenge to charge-sheet No.26 of 2016 filed in the Court of Judicial Magistrate First Class, Arjuni- Morgaon, District Gondia in pursuance of First Information Report No.36 of 2016, registered with the non-applicant No.1-Police Station for offences punishable under sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000 and also proceedings bearing Regular Criminal Case No.177 of 2016.

4. The First Information Report came to be registered against the applicant and another with the accusations that the applicant (Accused No. 2) is an administrator of a Whatsapp group, that accused No.1 used filthy language against the non-applicant No.2 on the Whatsapp group of which applicant is an administrator, that despite accused No.1 using filthy language against the non-applicant No.2, the applicant had not taken any action against the accused No.1. It is alleged that the applicant being administrator had not removed nor deleted accused No.1 from the Whatsapp group. It is further alleged that the applicant had not asked accused No.1 to submit apology to the non-applicant No.2, on the contrary, the applicant expressed his helplessness. The non-applicant No.2, therefore, lodged First Information Report against the applicant and accused No.1. The Investigating Agency, after receipt of the First Information Report of the non-applicant No.2, initiated investigation, recorded statements of the non-applicant No.2 and other witnesses, seized mobile phones of the non-applicant No.2 and accused persons and forwarded it to Forensic Laboratory for further examination. The Investigating Agency, after completion of investigation, filed charge-sheet before Judicial Magistrate First Class, Arjuni-Morgaon.

5. The applicant has therefore, filed present application challenging filing of charge-sheet and continuation of proceedings against the applicant. This Court, on 23/08/2016 issued notice to the non-applicants. The non-applicant No.1 in pursuance of notice of this Court, has filed its reply stating that there is sufficient material available against the present applicant. It is further stated that considering the allegations against the applicant, prima facie ingredients of offence alleged against the applicant are made out.

6. We have heard Mr. R.M.Daga, the learned Advocate for the applicant, Mr. T.A.Mirza, learned A. P. P. for the non-applicant No.1 and Mr.Sanjay Bramhe, the learned Advocate for the non-applicant No.2.

7. We have carefully considered the allegations in the First Information Report and material brought on record in the form of charge-sheet.

8. The crux of the issue involved is whether an administrator of Whatsapp group can be held criminally liable for objectionable post of its member for committing offences punishable under sections 354- A(1)(iv) , 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000. To adjudicate the said issue, it is necessary to understand functioning of Whatsapp messaging service. Whatsapp is an instant messaging platform which can be used for mass- communication by opting to create a chat group. A chat group is a feature on Whatsapp which allows joint participation of members of the chat group. Group Administrators, as they are generally called, are the ones, who create the group by adding or deleting the members to the same. Every chat group has one or more group administrators, who control participation of members of the group by deleting or adding members of the group. A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members t