1. This Crl. M.C. is filed seeking to quash Annexures A1 (FIR), A3 (Final Report) and all further proceedings in C.C.No.767 of 2019 on the file of the Court of the Judicial First-Class Magistrate Court - III, Kottayam.

2. Petitioner is the sole accused in C.C.No.767 of 2019, which arose from Crime No.306 of 2019 registered by the Kottayam West Police Station, alleging commission of the offences punishable under Section 294 (b) and 509 of the Indian Penal Code.

3. The prosecution case, in short, is that the petitioner had on 08.02.2019 between 9.35 P.M. and 9.36 P.M. posted an obscene message explicitly naming the de facto complainant, in an official WhatsApp group of the Company in which the de facto complainant was a former employee, thereby committing the offences alleged.

4. Heard Sri. Naveen Thomas, Advocate for the petitioner and Smt. Maya M.N., learned Public Prosecutor for the 1st respondent. In spite of service, there was no appearance for the 2nd respondent.

5. The learned counsel for the petitioner submitted that the FIR, Final Report and all further proceedings in the CC are fit to be quashed since no offence under Section 294 (b) or Section 509 of the IPC are revealed therefrom. The 2nd respondent, it is submitted, was not even a member of the official WhatsApp group named “RRL FM TEAM” of the relevant Company when the said messages were allegedly posted therein. Even as per Annexure A2, First Information Statement of the 2nd respondent, the said messages were noted by her only when CW4, a former colleague of hers, took a screenshot of the same and forwarded it to her husband (CW2). The petitioner contended that even if the allegations in Annexures A1, A2 and A3 are accepted in their entirety, they do not constitute any offences under Sections 294 (b) and 509 IPC as they lack the necessary ingredients. In order to constitute an offence under 294 (b), the obscene act must be made in a public place and it should create annoyance to the public. Since the alleged messages were sent in an official WhatsApp group of a Company, which is a closed group with no access to the public, it cannot be treated as one committed in a public place. Further, the messages as such do not reveal any obscene content, as they have not created any annoyance to the public which is a mandatory ingredient. Since the de facto complainant was not a member of the group at the time when the relevant message was alleged to have been posted none of the essential elements to attract Section 509 are present. Reliance is placed in this respect on the dictum laid down in James Jose v. State of Kerala [2019 (3) KHC 531], Capt. Noble Pereira v. State of Kerala [2024 (5) KHC 607]; Aliyar K.P. v. State of Kerala [2024 KHC 759]; Aji Raj C.A v. State of Kerala and another [2020 KHC 54] and Jahangeer P.T. v. State of Kerala [2025 KHC 1687].

6. Per contra, the learned Public Prosecutor opposed the contentions and submitted that the messages sent in the official WhatsApp group satisfies the mandates of Section 294 (b) IPC as the WhatsApp group has to be treated as a public place, especially since there are many other members in the group. The messages sent by the petitioner in the group had created annoyance to the other members as it has obscene content which outrages the modesty of a woman viz. the 2nd respondent whose name had been explicitly stated therein. It is submitted by the learned Public Prosecutor that the petitioner was removed from the WhatsApp group by the admin after the said messages were sent by him in the group and this action of the group admin clearly shows that the messages sent in the group had created an annoyance to others in the group. Thus, the offences under Sections 294 (b) and 509 IPC, it is submitted, are attracted. The learned Public Prosecutor thus prays that the Crl. M.C. may be dismissed.

7. I have considered the contentions put forth by both sides. Petitioner has filed this Crl. M.C. invoking Section 482 Cr.P.C. seeking to quash the proceedings initiated against him under Sections 294 (b) and 509 of the IPC. It is trite and settled as laid down in the catena of binding precedents of the Hon’ble Supreme Court, specifically from State of Haryana v. Bhajan Lal [1992 SCC (Cri) 426], onwards, that inherent powers under Section 482 Cr.P.C. can be exercised to quash a First Information Report (FIR) or criminal proceeding when the basic ingredients to make out the alleged offences are not disclosed. It thus assumes relevance to ascertain whether the ingredients necessary to lay a charge against the petitioner under Sections 294 (b) and/or 509 of the IPC have been made out in Annexures A1 (FIR) and A3 (Charge Sheet).

8. Section 294(b) of the IPC mentions obscene acts and songs. It reads as follows:

                            "294. Obscene acts and songs - Whoever, to the annoyance of others - (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

                            As regards the test of obscenity under Section 294 (b) IPC, the Hon’ble Supreme Court in N.S. Madhanagopal and another v. K. Lalitha [(2022) 17 SCC 818] has held as follows:

                            “7. It is to be noted that 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. The following passage from the judgment authored by Justice K.K. Mathew (as his Lordship then was) reported in P.T. Chacko v. Nainan (1967 KLT 799) explains as follows:

                            “5. The only point argued was that the 1st accused has not committed an offence punishable under Section 294(b) IPC., by uttering the words above-mentioned. The courts below have held that the words uttered were obscene and the utterance caused annoyance to the public. I am not inclined to take this view. In the Queen v. Hicklin, [L.R.] 3 Q.B. 360 at 371 Cockburn C.J. Laid down the test of ‘obscenity’ in these words:

                            '……. the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences......'

                            6. This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881. In Samuel Roth v. U.S.A., 354 US 476 (1957), Chief Justice Warren said that the test of ‘obscenity’ is the “substantial tendency to corrupt by arousing lustful desires”. Mr. Justice Harlan observed that in order to be ‘obscene’ the matter must “tend to sexually impure thoughts”. I do not think that the words uttered in this case have such a tendency. It may be that the words are defamatory of the complainant, but I do not think that the words are ‘obscene’ and the utterance would constitute an offence punishable under S. 294(b) IPC”

                            8. It has to be noted that in the instance case, the absence of words which will involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294(b). None of the records disclose the alleged words used by the accused. It may not be the requirement of law to reproduce in all cases the entire obscene 4 words if it is lengthy, but in the instant case, there is hardly anything on record. Mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294(b) IPC. To prove the offence under Section 294 of IPC mere utterance of obscence words are not sufficient but there must be a further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the appellants accused annoyed others, it cannot be said that the ingredients of the offence under Section 294 (b) of IPC is made out.” [Emphasis added]

9. In the case at hand, prosecution alleges that the message alleged to be ‘obscene’ had been posted in a WhatsApp group of a Company in which the de facto complaint was an erstwhile employee. She had already resigned from the Company and was no longer a member of the relevant WhatsApp group at the time when the message was posted. The message after its posting in the WhatsApp group was purportedly copied by a member of the group and was forwarded to the de facto complainant's husband. The commission of the offence under Section 294 (b) IPC is thus alleged based on the information that had been shared with the husband of the de facto complainant.

10. The principal contention put forth by the learned counsel for the petitioner is that a WhatsApp group is not a public place and hence an offence under Section 294 (b) IPC would not lie with respect to a message posted in a WhatsApp group. The High Court of Bombay in Nivrutti v. State of Maharashtra [2020 SCC OnLine Bom 410] has held that since WhatsApp messages sent by one person to another are end-to-end encrypted and since only the sender of the message and the recipient of the message can read the messages, such messages are to be treated as personal messages. In the said case, the Hon’ble Court had noted that the security policy of WhatsApp states that nobody in between, not even WhatsApp, can read the messages so sent by one person to another through the WhatsApp platform. The messages are secured with lock, and only the recipient and sender have the special key needed to unlock and read them. Every sent message has its unique lock and key and it is claimed that WhatsApp does not store the messages on the server, once they are delivered which ensures that nobody, even WhatsApp, purportedly has access to them. Thus, going by WhatsApp security policy, the Hon'ble High Court of Bombay had in Nivrutti (supra) held that since a message is not accessible to the third party, the nature of the one-to-one messages on WhatsApp makes them personal and puts them beyond the realm of utterances in the public.

11. In the facts of the case, however, it is relevant to note that the message was not a personal message from the sender to the recipient. It was posted in a group where more than two persons were members. The members were in the said group owing to their status as the employees of the relevant Company. The group had been termed as an ‘official group’ carrying the name “RRL FM TEAM” thereby denoting that the same had been set up for the purpose of exchanging messages that are relevant to the members from the official point of view. Messages sent in such a group cannot claim the kind of privacy that an interpersonal communication possess. Though WhatsApp may not be a public place when messages are exchanged through the personal accounts of two individuals readable by them alone, when the relevant message is posted in a WhatsApp group where the messages could be accessed and read by members of the group such messages cannot be termed as personal one to one message. If such messages are indeed ‘obscene’, then posting the same in WhatsApp group is akin to uttering them in a public place. That the group comprises of willing members or is a closed group to which the general public at large have no access, does not by itself take the group out of the connotation ‘public place’ as used in Section 294 (b) IPC. Thus, the contention put forth by the learned counsel for the petitioner that Section 294 (b) IPC does not apply to messages posted in a WhatsApp group for the purported reason that there has been no utterance or writing in the 'public place', cannot be countenanced. However, the contention that there was nothing ‘obscene’ about the message posted by the petitioner, and that there is no proof of any annoyance so as to meet the ingredients needed to attract charges under the relevant provisions, needs closer examination.

12. It is trite that to sustain a charge under Section 294 (b), both obscenity and public annoyance must be proven, and mere abusive/defamatory words are insufficient; the act must be obscene and should cause annoyance in or near a public place. Further, the words used must be capable of arousing sexually impure thoughts (obscenity) thus causing annoyance, emphasizing the necessity of detailing the actual words used. It is relevant to note that the actual words spoken/written are not mentioned either in Annexure A1 (FIR) nor in Annexure A2 (Charge Sheet). The words written in the WhatsApp group, as discernible from Annexure A2 statement of the de facto complaint does not reveal lascivious or sexually impure elements and rather verges on abuse. It is trite that mere abusive, defamatory, or humiliating words, without the element of obscenity, do not attract Section 294 (b). The final report only mentions that the accused had posted a message which was defamatory and abusive of the de facto complainant. The same is insufficient to make out an offence under Section 294(b) IPC. There is nothing in Annexure A3 chargesheet to even prima facie show that the said message had caused annoyance to others, or that the act itself was offensive to community decency, and was not just mere abuse. Thus, the charge laid against the petitioner under Section 294(b) IPC is unsustainable.

13. Coming to Section 509 IPC which had been laid against the petitioner, it reads as follows:

                            “509: Word, gesture or act intended to insult the modesty of a woman: Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.”

                            As regards the ingredients necessary to attract Section 509 IPC, the Hon’ble Supreme Court in Madhushree Datta v. State of Karnataka and another [(2025) 3 SCC 612] has held as follows:

                            “27. For ascertaining whether, prima facie, the provision of Section 509 of the IPC was attracted, it is essential to first understand the meaning of the term “modesty”, to determine whether modesty has been insulted. While modesty is not explicitly defined in the IPC, this Court has addressed the essence of a woman’s modesty in the decision in Ramkripal v. State of Madhya Pradesh. Excerpts from the decision read as under:

                            “12. What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex...”

                            28. Further, this Court while discussing the test for outraging the modesty of a woman under Section 509 of the IPC in Rupan Deol Bajaj v. Kanwar Pal Singh Gill, observed as under:

                            “15. In State of Punjab vs. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the `common notions of mankind’ referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh’s case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman...” (emphasis supplied)

                            29. The conclusion that emerges from the above discussion is that it will be essential for this Court to carefully assess the evidence presented, in order to determine whether there is sufficient material to establish the intention and knowledge on the part of the appellants, to insult the modesty of the complainant or, to put it pithily, whether any act was intended to shock the sense of decency of the complainant being a woman.

                            30. The term “filthy language,” when examined in isolation, and without any contextual framework or accompanying words, indicating an intent to insult the complainant’s modesty, does not fall within the purview of Section 509 of the IPC. Had there been references to specific words used, contextual details, or any gestures—whether preceding, succeeding, or accompanying these words—that could demonstrate a criminal intent to insult the modesty, and it might have assisted the prosecution in establishing the case against the appellants.

                            31. In considering the term “filthy language” objectively, in the overall conspectus of the case, we are of the view that the appellants’ actions do not demonstrate the requisite intent or knowledge that would reasonably lead to the conclusion that their conduct could provoke such a severe emotional response as to constitute an insult to a woman’s modesty.”

The offence laid out under Section 509 is thus gender-specific. It focuses on the sexual dignity and modesty of a woman, and not merely on injury to reputation or emotional distress. If follows from the above that to maintain proceeding under Section 509 IPC, the action should be one that insults the modesty of the complainant or one that was intended to shock the sense of decency of the complainant as a woman. As mentioned above, the final report only states that the accused had posted a message which was defamatory and abusive of the de facto complainant. Mere abusive, defamatory, or offensive language, used against a woman without a clear nexus to the modesty or sexual dignity of the woman, cannot be said to automatically attract Section 509 IPC. Even prima facie reference to men’s rea on the part of the petitioner in posting the message with an intention to insult the modesty of the de facto complainant, which is a crucial requirement, is not discernible from Annexures A1 and A3. It is also relevant to note in this context that the de facto complainant was not a member of the group at the time when the message was alleged to have been posted. She had already left the group when she quit the job in the Company, and it was only later, when an erstwhile colleague of hers took a screenshot of the message and chose to forward the same to her husband, that the message was brought to her notice. By that time, the petitioner himself had been removed from the relevant WhatsApp group by the admin. Section 509 IPC provides that the act alleged must have been intended to be “seen by such woman” or should be one that “intrudes upon the privacy of such woman”. Neither of the said two requirements is seen to be met or even alluded to in the Annexures A1 or A3. Thus, apart from the fact that the words allegedly used in the message do not disclose the essential ingredients required to attract Section 509 IPC, the manner in which the offence is alleged to have been committed also does not satisfy the ingredients of the said provision.

In view of the above, I conclude that none of the ingredients of the offences under Section 294 (b) and 509 of the IPC have not been made out. Annexures A1 (FIR), A3 (Final Report) and all further proceedings in C.C.No.767 of 2019 on the file of the Court of the Judicial First-Class Magistrate Court- III, Kottayam, against the petitioner are hereby quashed.