High Court of Madras

I. Linga Bhaskar and Ors. Vs. The State and Ors.

MANU/TN/2474/2018

05.06.2018

Criminal

An emoji is sent to express ones feeling about something, it cannot be treated as an overt act on others.

In facts of present case, all the Petitioners are working in BSNL Department and the Second Respondent/de-facto complainant is also in BSNL Department as Divisional Engineer (Rural). It is stated that, the Petitioners as well as the Second Respondent are all members of an official whatsapp group. It is admitted that, the official whatsapp group was intended to be used by the members for sharing of any innovative works/ideas for improving the quality of service of BSNL.

The Second Respondent has posted the video footage of three customers who have spoken about their grievance about the BSNL coverage. It appears that, the Petitioners are mainly indoor staff of BSNL whereas the Second Respondent is an officer engaged as an outdoor staff. Since the conversation uploaded by the Second Respondent was taken as an act to degrade the indoor staff, the Petitioners and few others have posted an emoji, namely, a smiling face with tears. Some of the Petitioners felt that, the conversation uploaded by the second Respondent is likely to de-motivate the executives and is likely to tarnish the image of BSNL, they requested the members of SNEA by sending similar emojis in the whatsapp group to be shared by other members of the group. Following this, the Petitioners who are the accused in the complaint have posted the same emoji, a cartoon face with joy but tears in the eyes. Annoyed by this, the Second respondent gave a complaint.

In the complaint, the Petitioners 1 and 2 were shown as persons who have induced other members to post crying smiley faces with an intention to humiliate the Second respondent. The details of posting of such emojis by other petitioners was given in the complaint. A case was registered for offences punishable under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002, Section 3(1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Section 67 of Information Technology Act, 2000/Act. Challenging the First Information Report, which is registered in Crime No. 206 of 2017 on the file of the first respondent, the above Criminal Original Petition is filed.

In present case, a face with tears of joy was posted by the petitioners who are all members of a whatsapp group in response to the video footage that was uploaded by the Second Respondent. It is admitted that, the emojis are posted to convey numerous feelings. In the present context, where the Petitioners and the second Respondents are members of the same whatsapp group and they are all employees of BSNL, the question is whether the Petitioners have committed the offence alleged against them. When it is accepted that an emoji is sent to express ones feeling about something, it cannot be treated as an overt act on others. It is a comment may be intended to ridicule or to show one's disapproval in a given context.

From the reading of Section 67 of Act, it can be seen that this provision prohibits publication of information that is obscene in electronic form. The prohibition against the obscenity as contemplated under Section 67 of the Act in public interest is violated only when a person publishes or transmits any material which is lascivious or appeals to prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained in those materials. In present case, certainly, the allegations do not indicate any publication of obscene material which is lascivious or appeals to prurient interest. The object of Section 67 of Act is, therefore, about a publication revealing a over sexual interest or desire or encouraging an excessive interest in sexual matters. Hence, this Court is of the clear opinion that the complaint do not disclose an offence under Section 67 of Act.

Harassment means any indecent act or by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force. The Act is intended to punish person who does something in order to outrage women's modesty. In several decisions of the Hon'ble Supreme Court, harassment of women has been dealt with. The allegation is about the posting of an emoji in a whatsapp group shared by the group of persons. The posting of emoji is to express ones feeling. It is an act that may offend the second respondent but that is not an act attracting Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998.

In present case, it is not the case in the complaint that, the smiley was intended to humiliate the Second Respondent for she being a member of Scheduled Caste/Scheduled Tribes. In such circumstances, present Court is unable to find any reason to sustain the complaint as one attracting the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. It is also admitted that, some of the Petitioners belong to SC/ST community. The reading of the entire contents of the FIR and the allegations made against the Petitioners do not attract Section 3(1)(r), 3(1)(t), 3(1)(u) of Act, 2015.

When no cognizable offence is found on the face of the complaint, the First Information Report is liable to be quashed. In the case on hand the Petitioners and the Second Respondent are the members of a whatsapp group. Everyone has a right to express their feelings and share their idea. The face of crying smiley is to comment about the idea of Second respondent in publishing or uploading a video of complaints made by BSNL customers regarding deficiencies in BSNL coverage. Every person has got indefeasible right to express what he feels. The Petitioners who are working as executives and staff of BSNL along with second respondent ought not to have indulged in posting such emoji in the interest of BSNL since whatsapp group is formed to promote team spirit. Such complaints by the Second Respondent who is working as a Divisional Engineer (Rural) will pave way for other complications and friction among members which will be detriment to the interest of BSNL. The First Petitioner has filed an affidavit on behalf of all the Petitioners, recording their regret for posting such smileys. Accordingly, this Criminal Original Petition is allowed and the First Information Report on the file of the first respondent is quashed.

Tags : Cognizance FIR Quashing of

Share :