CRL.MC No. 3804 of 2020 (In connection with ST No.1805/2019, on the file of the Judicial First Class Magistrate Court-1, Perumbavoor, arising out of Crime No.2083/2018 of Angamaly Police Station)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ``` CRL.MC NO. 3804 OF 2020 ``` ``` [IN CONNECTION WITH ST NO.1805/2019 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, PERUMBAVOOR ARISING OUT OF CRIME NO.2083/2018 OF ANGAMALY POLICE STATION] ``` ``` PETITIONERS/ACCUSED NO.3 AND 4: ``` ``` 1ADV. ALPHIN PAYYAPPILLY AGED 30 YEARS S/P P.P.ANTONY, PAYYAPILLY HOUSE, MALLUSSERY, VATTAPARAMBU P.O., ANGAMALY,PIN-683 579 2ADV SHAJI JOSEPH AGED 50 YEARS S/O. JOSEPH, THIRUTHANATHIL HOUSE, CHEMPANOOR, ANGAMALY SOUTH P.O., BY ADVS. K.S.BHARATHAN SRI.CHRISTINE MATHEW ``` ## `RESPONDENTS/STATE, DEFACTO COMPLAINANT AND ACCUSED NOS.1 AND 2:` ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682 031 2SAVY P.P., S/O. PATHROSE, PALATTY HOUSE, MULLASSERY JUNCTION, ANGAMALY. 3JOJO.K.THARIAN, KAITHARATHU HOUSE, VATHAKADU, THURAVOOR P.O., ANGAMALY ,PIN-683 586 4M.J.PAULSON, S/O.JOSEPH, MULAVIKKARA PALLIPPADAN HOUSE, THURAVOOR P.O., ANGAMALY ,PIN-682 586 R1 BY SRI.C.S.HRITHWIK SR.PP R2 BY ADV SRI.V.BIJU JOSEPH ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.11.2022, THE COURT ON 22.11.2022 PASSED THE FOLLOWING: ``` CRL.MC No.3804 of 2020 2 ## `O R D E R` ``` The petitioners are accused Nos.3 and 4 in ``` ``` S.T.No.1805/2019 on the file of the Judicial First Class Magistrate Court-1, Perumbavoor. The aforesaid proceedings are initiated based on Annexure-4 private complaint submitted by the 2[nd] ``` ``` respondent herein alleging the commission of the offences punishable under Section 500 r/w. Section 34 of the Indian Penal Code (IPC). Respondents 3 and 4 in this Crl.MC are accused, ``` ``` Nos.1 and 2, respectively in the above Crime. The contents of Annexure-A4 private complaint ``` ``` are as follows: ``` ``` The 2[nd]respondent complainant and the ``` ``` petitioners, as well as respondents 3 and 4, are ``` ``` lawyers practising in various courts in Kerala. The grievance of the 2[nd] respondent is that the 3[rd] and 4[th] respondents herein, who are accused Nos.1 and 2 have published certain statements ``` CRL.MC No.3804 of 2020 3 ``` making a scurrilous attack on the 2[nd] respondent, ``` ``` which was defamatory, false and baseless, in a WhatsApp group named ‘Angamaly Bar Association’ on 23.6.2018 and 24.6.2018 respectively. The ``` ``` role assigned to the petitioners herein is that, ``` ``` being the Administrators of the said WhatsApp group, they did not interfere when the defamatory statements were published, and ``` ``` therefore they also took part in the commission of the aforesaid crime. As per Annexure-A8, the Judicial First Class Magistrate Court-1, Perumbavoor, had taken cognizance of the said complaint for the offences punishable under Section 500 r/w. Section 34 of the IPC. This ``` ``` Crl.M.C. is filed challenging the Annexure-A8 order and also to quash the Annexure-A4 ``` ``` complaint as against the petitioners herein. ``` ``` 2.Heard Sri.K.S.Bharathan, the learned ``` ``` counsel for the petitioners, Sri.C.S.Hrithwik, the learned Public Prosecutor for the 1[st] ``` CRL.MC No.3804 of 2020 4 ``` respondent and Sri.V.Biju Joseph, the learned ``` ``` counsel for the 2[nd] respondent. Even though notices were issued to respondents 3 and 4, there is no appearance for them. ``` ``` 3.I have gone through the records and the ``` ``` contentions raised from either side. ``` ``` 4.On perusal of the Annexure-A4 complaint, it can be gathered that the petitioners were implicated as the accused persons only because of the reason that, they were Admins of the aforesaid WhatsApp group and they failed to ``` ``` maintain the WhatsApp group legally and morally ``` ``` by protecting the reputation and interests of ``` ``` the members of the group and general public. It ``` ``` is also alleged that they allowed accused Nos.1 ``` ``` and 2 to use WhatsApp for destroying and ``` ``` degrading the reputation of the complainant. ``` ``` 5.The contention of the petitioners is ``` ``` that, being the Admins of the WhatsApp group, they did not have any control over the messages ``` CRL.MC No.3804 of 2020 5 ``` posted on the said group and it is pointed out ``` ``` that there is no allegation in the complaint that the defamatory messages were published by accused Nos.1 and 2 with the connivance of the petitioners herein. Therefore, under no circumstances they cannot be held responsible for the publication made by accused Nos.1 and 2, even if the messages they posted were assumed to be defamatory. ``` ``` 6.The responsibility of the Admins of the WhatsApp group in respect of the messages posted in the WhatsApp group was a question considered by this Court inManual v. State of Kerala [2022(2) KLT 68]. In the said decision, this issue was specifically considered in the light of the principles laid down by the Hon’ble Supreme Court in various decisions. It was found that, the question of vicarious liability cannot be made applicable to criminal offences unless the same is mentioned explicitly in the statute ``` CRL.MC No.3804 of 2020 6 ``` itself. In the said case, after referring to the ``` ``` statutory provisions and decisions rendered by the Hon’ble Supreme Court as well as the other courts, it was observed as follows: ``` ``` “10. Thus, a vicarious criminal liability can be fastened only by reason of a provision of a Statute and not otherwise. In the absence of a special penal law creating vicarious liability, an Admin of a WhatsApp group cannot be held liable for the objectionable post by a group member. The petitioner has been charged with S.67B(a), (b), and (d) of the IT Act and S.13, S.14 and S.15 of the POCSO Act. None of these provisions provide for such liability. There is no law by which an Admin of any messaging service can be held liable for a post made by a member in the group. A WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record. There is no master - servant or a principal – agent relationship between the Admin of a WhatsApp group and its members. It goes against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group. It is the basic principle of criminal jurisprudence that mens rea must be an ingredient of an offence and both the act and intent must concur to constitute a crime. ``` ``` 11. In Kishor Chintaman Tarone v. State of Maharashtra and Another, 2021 KHC 4576 : 2021 ICO 1285 : 2021 KHC OnLine 4576 : 2021 CriLJ 3019, the High Court of Bombay dealt with similar issue in terms of the liability of the Admin resulting from an indecent post shared by another member on the WhatsApp group. It was held that 'a Group Administrator cannot be held vicariously ``` CRL.MC No.3804 of 2020 7 ``` liable for an act of a member of the Group, who posts objectionable content, unless it is shown that there was common intention or pre - arranged plan acting in concert pursuant to such plan by such member of a WhatsApp Group and the Administrator.' In Ashish Bhalla v. Suresh Chawdhary and Others, (2016) SCC OnLine Del 6329, the Delhi High Court observed that defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. Recently, the Madras High Court in R. Rajendran v. The Inspector of Police and Another (Crl.O.P. (MD) No. 8010/2021 decided on 15/12/2021), following Bombay High Court's Judgment directed the investigating officer to delete the name of the WhatsApp group Administrator while filing final report if his role is merely of an Administrator and nothing else. ``` ``` 12. As has been held by both the Bombay and Delhi High Courts, the only privilege enjoyed by the Admin of a WhatsApp group over other members is that, he can either add or delete any of the members from the group. He does not have physical or any control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group. Thus, Creator or Administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariouslyheldliableforany objectionable content posted by a member of the group.” ``` ``` In the light of the principles laid down by this Court in the aforesaid decision, under no ``` ``` circumstances can the petitioners be implicated as accused persons merely because of the reasons that they were the Admins of the WhatsApp group ``` CRL.MC No.3804 of 2020 8 ``` in which defamatory statements were published by ``` ``` accused Nos.1 and 2. On perusing the allegations contained in Annexure-A4 complaint, it is ``` ``` evident that, apart from the fact that they were Admins of the relevant WhatsApp group, there are ``` ``` no other allegations against them connecting them with the act of publication of the messages ``` ``` made by accused Nos.1 and 2. Therefore, as held ``` ``` by this Court inMannual’s case (supra), the ``` ``` petitioners cannot be implicated as accused persons. This is particularly when the principles of vicarious liability cannot be made ``` ``` applicable to the petitioners. In such ``` ``` circumstances, I find this as a fit case in ``` ``` which the powers of this Court under Section 482 ``` ``` Cr.PC has to be invoked, as the prosecution ``` ``` against the petitioners herein is clearly an abuse of the process of law. ``` ``` In the result, this Crl.M.C. is allowed, ``` ``` Annexure A4 complaint, which is now pending as ``` CRL.MC No.3804 of 2020 9 ``` S.T.No.1805/2019 on the file of the Judicial First Class Magistrate Court-1, Perumbavoor and all further proceedings pursuant to it as against the Petitioners/Accused Nos. 3 and 4 are hereby quashed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk CRL.MC No.3804 of 2020 10 ## `APPENDIX OF CRL.MC 3804/2020` ## `PETITIONER’S ANNEXURES:` |`ANNEXURE-A1`|`CERTIFIED COPY OF THE FIRST INFORMATION`| |---|---| ||`REPORT NO.2083 OF 2018 OF ANGAMALY POLICE`| ||`STATION DATED 19.09.2018`| |`ANNEXURE-A2`|`CERTIFIED COPY OF THE LAWYER NOTICE DATED`| ||`15.09.2018 ISSUED TO THE PETITIONERS AND TO`| ||`THE RESPONDENTS 3 AND 4 BY THE 2ND`| ||`RESPONDENT/DEFACTO COMPLAINANT`| |`ANNEXURE-A3`|`CERTIFIED COPY OF SEIZURE REPORT PREPARED`| ||`DATED 26.07.2019 BY THE INSPECTOR OF`| ||`POLICE, ANGAMALY POLICE STATION`| |`ANNEXURE-A4`|`CERTIFIED COPY OF THE PRIVATE COMPLAINANT`| ||`NUMBERED AS CMP NO.1381 OF 2018 DATED`| ||`14.11.2018 PRESENTED BEFORE THE HON'BLE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT-I,`| ||`PERUMBAVOOR`| |`ANNEXURE-A5`|`CERTIFIED COPY OF THE OATH OF THE 2ND`| ||`RESPONDENT/DEFACTO`<br>`COMPLAINANT`<br>`DATED`| ||`30.03.2019`| |`ANNEXURE-A6`|`CERTIFIED COPY OF THE OATH OF MR.ALBERT`| ||`JOSEPH (ADVOCATE) DATED 30.03.2019`| |`ANNEXURE-A7`|`CERTIFIED`<br>`COPY`<br>`OF`<br>`THE`<br>`OATH`<br>`OF`| ||`MR.T.T.PAULOSE (PANCHAYATH MEMBER) DATED`| ||`30.03.2019`| |`ANNEXURE-A8`|`CERTIFIED COPY OF PROCEEDINGS DATED`| ||`03.09.2019 OF THE HON'BLE JUDICIAL FIRST`| ||`CLASS MAGISTRATE COURT-1, PERUMBAVOOR`|