The Gujarat High Court has ruled that photographing a question paper during an examination and forwarding those images through WhatsApp does not amount to a privacy offence under Section 66E of the Information Technology Act, 2000, as the provision is intended to protect images of a person’s private areas and not documents such as examination papers.
Justice P.M. Raval made the observation while partly allowing a petition filed by two accused individuals who sought the quashing of an FIR lodged against them in connection with an alleged examination malpractice case.
The case stemmed from an incident reported in November 2018. According to the prosecution, an examination invigilator informed authorities that a candidate had been using a mobile phone inside the examination hall to photograph the question paper and transmit the images outside. During inquiry, the candidate allegedly admitted that he had forwarded the photographs through WhatsApp to his brother, who was subsequently named as a co-accused.
Examining the allegations, the High Court found that Section 66E of the IT Act could not be invoked. The provision penalises the intentional capture, publication or transmission of images depicting the private area of an individual without consent. The Court observed that a question paper bears no resemblance to the kind of private image contemplated by the statute.
The judge noted that the material allegedly transmitted was merely a photograph of the examination paper. As such, sending it to another person through WhatsApp could not be characterised as the capture or dissemination of an image of any person’s private area. Consequently, the Court held that the charge under Section 66E was unsustainable and deserved to be set aside.
The Court also found fault with the inclusion of Section 188 of the Indian Penal Code, which deals with disobedience of an order duly promulgated by a public servant. It observed that instructions issued to examination candidates, including restrictions on carrying mobile phones, cannot automatically be treated as a legally promulgated order for the purpose of attracting criminal liability under that provision.
Further, the Court pointed out that prosecution under Section 188 requires a written complaint by the concerned public servant before judicial proceedings can be initiated. That statutory requirement had not been satisfied in the present case.
During the hearing, the State also accepted that neither Section 66E of the IT Act nor Section 188 of the IPC was applicable on the facts of the case.
Accordingly, the High Court quashed the proceedings insofar as they related to the two provisions. However, it clarified that the FIR would continue to operate with respect to any other offences that may be disclosed by the
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