Private WhatsApp Message Forwarded By Recipient Doesn't Constitute Offence In 'Public View' Under Atrocities Act: Bombay High Court

No 'Public View' in Private WhatsApp Message Forwarded by Third Party, Bombay HC Quashes Atrocities Act Case

Aurangabad, Maharashtra - The Bombay High Court at Aurangabad has quashed criminal proceedings under the Scheduled Castes and Scheduled Tribe s (Prevention of Atrocities) Act, 1989, against a lawyer, ruling that a private WhatsApp message sent to an official does not constitute an offence "in any place within public view," even if the recipient subsequently forwards it.

A division bench of Justice Smt. Vibha Kankanwadi and Justice Sanjay A. Deshmukh held that the original sender cannot be held liable for the uncontrolled forwarding of a private communication by a third party, especially when there is no evidence of intent to insult a member of a Scheduled Caste.

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Background of the Case

The applicant, Kedar Kishor Bhusari , a legal practitioner from Jalgaon , was booked under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act. He had sent a video to the Assistant Commissioner of the Jalgaon Municipal Corporation, Mr. Uday Patil, complaining about a public nuisance caused by garbage and wandering pigs.

In the video, Bhusari stated that pigs from " Bhangiwada " and "Mehtarwada" were being let loose near the garbage heap, endangering public health. The Assistant Commissioner, without applying his mind and in a hurry, forwarded this video to a WhatsApp group of the "Health Department" to address the complaint. The video was then further circulated, eventually reaching a WhatsApp group of the informant's community, leading to the filing of the FIR.

Arguments from Both Sides

Applicant's Counsel (Mr. S. V. Dixit ): Argued that Bhusari had no intention to insult any community. His sole purpose was to complain to the concerned authority about a civic issue. The video was a private communication to the Assistant Commissioner, and Bhusari had no control over its subsequent forwarding. The term "public view" was not satisfied as no member of the Scheduled Caste was present when the video was made.

Respondents' Counsel (Mr. N. R. Dayama and Mr. H. V. Tungar): Contended that using terms like " Bhangiwada " and "Mehtarwada" was a deliberate insult to the community, especially in light of a government circular advising against the use of such words. They argued that by sending the video, the applicant intended to insult the community and that the subsequent circulation made the offence public.

Court's Analysis and Key Findings

The High Court meticulously analyzed the chain of events and the essential ingredients of the alleged offences.

1. The 'Public View' Requirement

The court highlighted a crucial factual gap in the prosecution's case: no member of the Scheduled Caste was present at the spot when the applicant recorded the video. The judgment emphasized that for an offence under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act, the insult or abuse must occur "in any place within public view."

"For proving the offence under Section 3(1)(r) of the Atrocities Act, it has to be proved by the prosecution even prima facie that the person who is not the member of Scheduled Caste or Scheduled Tribe has intentionally insulted or intimidated a member of Scheduled Caste or Scheduled Tribe in any place within public view."

2. Liability for Forwarded Messages

The bench observed that a private WhatsApp communication between two individuals is encrypted. The responsibility for making it public lay with the recipient, not the original sender. The court noted the Assistant Commissioner's own statement that he had forwarded the video "without applying mind and in hurry."

"This Court, time and again, has taken note of the fact that the communications on WhatsApp between two individuals is encrypted and, therefore, unless the person receiving it forwards it to third person, the third person will not get any knowledge about the said communication... Thus, it is to be noted that the said forward by witness Uday Patil was not under the control of the applicant."

The court described the case as a "classical example of forwards on the WhatsApp groups... without considering the consequences."

3. Lack of Intent to Insult

The court found that the applicant's words were not intended to target or insult the community. The reference to " Bhangiwada " and "Mehtarwada" was to identify an area from which the pigs were coming, a place known by that name for years. The primary intent was to highlight a civic problem.

"These words cannot be considered as targeting or insulting or intimidating members of Rukhi or Walmiki caste. Certainly, the intention behind stating that, was to point out that pigs have come from a particular area..."

Final Decision

Concluding that forcing the applicant to face a trial would be an abuse of the process of law, the High Court allowed the application.

ORDER: The FIR and the consequent proceedings in Special Case No.232 of 2023 were quashed and set aside.