Mere humiliating words not obscene: High court quashes Gurugram FIR

The Punjab and Haryana High Court has ruled that “every humiliating word, by itself cannot be said to be obscene”. Making it clear that criminal law cannot be stretched to penalise every offensive or mocking expression, the bench made it clear that obscenity under Section 294 of the IPC required words capable of arousing “sexually impure thoughts”.

The assertions came as Justice Shalini Singh Nagpal allowed a petition for quashing of an FIR registered at the Sector 10 police station in Gurugram for obscenity and other offences on February 14, 2024, under provisions of the IPC. The bench held that continuation of prosecution would be an abuse of process.

The case has its agenesis in messages posted by a resident of a housing society in a WhatsApp group styled as a “Cultural WhatsApp Group”. The complainant alleged that the petitioner passed a lewd and sexually coloured remark on her photograph after her profile was shared by another member with intent to “embarrass, humiliate, defame, insult her modesty and to annoy her”. The petitioner was represented in the matter by advocates Aditya Sanghi and Lokesh Sharma.

Examining the ingredients of Section 294, the court held: “The words and the emojis used by the petitioner are certainly not in good taste and may have the tendency of offending a lady. The fact remains that to constitute an offence Section 294(b), obscenity is a sine-qua-non. As held in a case mere use of abusive, humiliating or defamatory words by itself cannot attract the offence under Section 294 (b) IPC.”

Justice Nagpal added that “in order to attract the culpability of Section 294 IPC, 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”. In the present case, “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 IPC”.

The court clarified the legal position on digital platforms by holding that a WhatsApp group would amount to a “public place” for the purposes of Section 294 IPC. “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 IPC.”

Justice Nagpal, at the same time, found that the first message, copied from a popular Bollywood song, “is not capable of arousing sexual impure thoughts,” while the second comment “reflects that intention of the petitioner was more humorous rather than to insult the complainant”. The text messages “do not contain lascivious or sexual content” and, though inappropriate, did not meet the legal threshold of obscenity.

The court further held that the essential ingredients of Sections 354-A (sexual harassment) and 509 (word, gesture, or act intended to insult the modesty of a woman) were also absent.

“The message posted by the petitioner having no sexual undertones cannot be termed a sexually coloured remark, therefore, the offence under Section 354-A IPC is also not made out. Moreso, when the complainant was not even a part of the WhatsApp group,” Justice Nagpal asserted.

As for Section 509 IPC, the bench ruled: “Mere mocking words and emojis posted by the petitioner on profile of complainant, without any nexus to her sexual dignity, cannot amount to an offence under Section 509 IPC.” It added that the provision requires that the act be intended to be seen by the woman concerned or intrude upon her privacy, and such intention was “clearly missing”.

Warning against mechanical prosecution, the court observed that “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”.