Isabella Mariam

The Punjab and Haryana High Court, Single Bench of Justice Shalini Singh Nagpal, quashed a criminal case registered against a Gurugram resident who had posted a comment on a housing society WhatsApp group in response to a fellow member's profile photograph. The complainant, a government school principal residing in the same society, had alleged that the remark was sexually coloured and intended to humiliate her. The Court held that while the words were inappropriate and potentially mocking in nature, they fell short of meeting the legal thresholds for obscenity, sexual harassment, or insult to a woman's modesty under the Indian Penal Code.

The petition was filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking quashing of an FIR registered under Sections 120-B, 294, 354-A and 509 IPC at Police Station Sector 10, Gurugram. The complainant, a school principal and resident of a housing society, alleged that the petitioner, also a resident, posted a remark in a WhatsApp group named “Privvy Cultural Group” after her profile photograph was shared by another member. The remark, “Jaane kitne dinon ke baad society me abb chand nikla,” was alleged to be a sexually coloured and lewd comment intended to insult her modesty and humiliate her during an ongoing Resident Welfare Association election.

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The petitioner contended that the remark was humorous, lacked mens rea, and did not constitute obscenity or sexual harassment. He argued that the WhatsApp group was private and that the essential ingredients of the offences were absent. The State submitted that chats were seized along with a Section 65-B certificate and that the petitioner’s mobile phone was sent to DITAC Lab. Section 120-B IPC was deleted during investigation, and trial was pending before the Judicial Magistrate Ist Class, Gurugram.

The Court examined whether the remark constituted obscenity within the meaning of Section 294 IPC and recorded: “The test of obscenity under Section 294(b) of the I.P.C. is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.” It further recorded that “mere abusive, humiliating or defamatory words by themselves, cannot attract an offence under Section 294(b) IPC.”

On the nature of WhatsApp communications, the Court observed: “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.”

After reproducing the impugned message, the Court stated: “Every humiliating word, by itself cannot, be said to be obscene.” It further recorded: “The words above 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.” The Court held: “The message posted by the petitioner does not fall in that category.” It added that “The text messages do not contain lascivious or sexual content.”

With respect to Section 354-A IPC, the Court observed: “the message posted by the petitioner having no sexual undertones cannot be termed a sexually coloured remark.”

On Section 509 IPC, the Court recorded: “To attract Section 509 IPC, the words used should be such as would insult the modesty of the complainant.” It further observed: “The criminal intention of the petitioner to insult the modesty of the complainant and her sense of decency, being a woman is clearly missing.” Additionally, it stated: “The intention to insult the modesty of the complainant by intending that the message would been seen by the complainant is missing as the complainant was never a part of the WhatsApp group, at the time when the message was posted.”

Referring to State of Haryana v. Bhajan Lal, the Court recorded the categories for quashing and concluded: “The present case is squarely covered by category No. (a) and (c) of Bhajan Lal’s case (supra).” It also stated: “Criminal prosecution of petitioner, on insufficient grounds at the whim of the complainant, cannot be allowed to continue.”

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The Court recorded: “The petition is allowed.” It further directed: “Accordingly, FIR No. 119 dated 14.02.2024, under Sections 120-B/294/354-A/509 of IPC Police Station Sector 10, Gurugram, District Gurugram, Haryana and all consequential proceedings arising therefrom is ordered to be quashed qua the petitioner. All the pending miscellaneous applications, if any, stand disposed of.”

Advocates Representing the Parties

For the Petitioners: Mr. Aditya Sandhi, Advocate; Mr. Lokesh Sharma, Advocate

For the Respondents: Mr. Kshitij Bharti, Assistant Advocate General, Haryana; Mr. Vishal Garg Narwana, Advocate; Ms. Nancy Antwal, Advocate

Case Title: Dheeraj Gupta v. State of Haryana and Another
Neutral Citation: 2026: PHHC:027901
Case Number: CRM-M-62284 of 2024 (O&M)
Bench: Justice Shalini Singh Nagpal