In a body-blow to the Surveillance State, the Kerala High Court has ruled that the admin (administrator) of a Whatsapp group is not vicariously liable for an objectionable post made by a group member.

In an order dated February 23, 2022, the court said, “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.”

Though this order was in connection with a case where a Whatsapp group member had posted a child pornography clip on the group, that led to the group admin also being implicated in a POCSO case, the HC order has far-reaching ramification in cases related to Whatsapp groups being used by activists and dissenters. Privacy advocates, digital rights groups and  internet freedom activists have pointed out how one malicious post by a rogue group member ought not to be deemed enough to implicate the group admin, as it can become a handy tool for the Surveillance State to trap and implicate dissenters.

What is Vicarious Liability?

The court, in its order recorded, “Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency; respondent superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility imposed on one person for the wrongful actions of another person. Such a liability arises usually because of some or the other legal relationship between the two. This often occurs in the context of civil law—for example, in employment cases.”

It further clarified, “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.”

Brief background of the case

The matter dealt with a case where the Petitioner had created a Whatsapp group titled FRIENDS. On March 29, 2020, a member had posted a video depicting child pornography to the group. On June 15, 2020 the Ernakulam police registered a case against the poster of the video for offences under
Sections 67B (a)(b) and (d) of the Information Technology Act, 2000 (for short, ‘the IT Act’) and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012 (for short, ‘the POCSO Act’). He was thus the primary accused in the case. However, the Petitioner was also arrayed as Accused No. 2 in the case that was pending as SC No.61/2021 at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam.

That’s when the Petitioner moved court to have the charges against him be dropped. In light of the court’s conclusion with respect to vicarious liability, the proceedings against the Petitioners will now be quashed.

Judge Dr. Kauser Edappagath ruled, “There is nothing on record to suggest that the petitioner has published or transmitted or caused to be published or transmitted in any electronic form the alleged obscene material or he browsed or downloaded the said material or, in any way, facilitated abusing children online so as to attract Sections 67B (a), (b) or (d) of the IT Act. Similarly, the prosecution has no case that the petitioner used children in any form of media for his sexual gratification or used them for pornographic purpose or stored, for commercial purpose, any child pornographic material in order to attract Sections 13, 14 or 15 of the POCSO Act.”

The judge further recorded in the order, “Since the basic ingredients of the offences alleged are altogether absent as against the petitioner, I am of the view that it is a fit case where the extra ordinary jurisdiction vested with this Court under Section 482 of Cr.P.C could be invoked.”

The court finally ruled, “For the reasons stated above, the entire proceedings in SC No.61/2021 at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children)
Court, Ernakulam as against the petitioner is hereby quashed.”

The entire order may be read here: 

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The Kerala High Court has refused to vitiate a trial holding 4 policemen Ezhukone Police Station guilty of custodial torture, on the ground that no sanction was sought under section 197 of Code of Criminal Procedure (CrPC). The bench of Justice Mary Joseph held that sanction under section 197 of Code of Criminal Procedure (CrPC) is contemplated only when acts of the public servant are bonafide and connected with the discharge of his official duty.

The accused policemen raised an appeal that though they were public servants, cognisance was taken by the trial court and they were prosecuted without getting the sanction from the State Government as contemplated under Section 197 Cr.P.C., and therefore, the process of taking cognisance and conduct of trial are vitiated.

The complainant alleged that on February 8, 1996 the accused policemen of Ezhukone Police Station, assaulted him and inflicted injuries on his body after forcibly taking him from his home to the Police Station.

The court held that Sanction contemplated under Section 197 Cr.P.C is meant to afford protection to a public servant while acting or purporting to act in the discharge of his official duty. Therefore, a public servant concerned while acting or purporting to act in the discharge of his official duty is entitled to protection envisaged under Section 197 Cr.P.C., if something untoward happened in the course.

The court cited Om Prakash and Others V. State of Jharkhand and another [(2012) 12 SCC 72] whereby the Supreme Court held that, “The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.”

The court concluded that the act allegedly committed by the public servant must have some reasonable nexus with the discharge of his official duty and must not merely be a cloak for doing an objectionable act. Juxtaposing this observation with the facts and circumstances of the case, the court held that the complainant was taken to the police station merely because he had made a demand for wages to one Veerasenan who happens to be a kin of one of the accused policemen. The case registered against the complainant, in the guise of which he was brought to the police station, was that the policeman (accused no.3) was wrongfully restrained and was prevented from discharging his official duties by the complainant. The trial court even acquitted the complainant after appreciating evidence and deemed it to be a false case against him.

The court also perused the evidence against the convicted policemen and concluded that the injuries found on the body of the complainant were caused by the policemen in question.

“From the above narrations, it is indicated that the complainant was brought to the Police Station by the accused not for any legal pursuit or in exercise by the policemen of any of their lawful authority. For the mere reason that the Policemen arrived there in a Departmental vehicle during hours of their official duty, and took the complainant alongwith them to the Police Station, it cannot be said that, they were discharging their official duties,” the court held.

The court further held thus,

“Sanction contemplated under Section 197 Cr.P.C is not meant to protect a public servant dealing with the life or personal liberty of a man out of purview of law or procedure established by law…Sanction as a protective measure is incorporated in Cr.P.C to save a public servant acting bonafidely without exceeding the jurisdictional limits and also duly exercising the authority recognized by law.”

The court stated that the convicted policemen cannot take the advantage of Section 197 Cr.P.C after committing mischievous acts under the guise of lawful discharge of official duties as in the case on hand. It further stated that merely because the incident occurred within the Police Station and during the course of discharge of official duty by the Policemen, will not legalise it, if it turns out as an exercise of excess power by them for illegal gain.

“Viewed in the above perspective, the accused in the case on hand can only be taken to have exercised their authority for committing some illegal acts, under the guise of exercise of lawful discharge of their official duties and therefore are not liable to be afforded with the protection envisaged under Section 197 Cr.P.C. Sanction contemplated under the above provision is not intended to safeguard illegal acts,” held the court.

The court thus found no error in the findings of the trial court that the accused policemen were guilty of offences under sections 323, 324 and 34 of the IPC.

The complete order may be read here:

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The Kerala High Court has granted anticipatory bail to all accused persons/petitioners- former Gujarat Director General of Police RB Sreekumar, two former Kerala Police officers S. Vijayan and Thampi S. Durga, and a retired IB official PS Jayaprakash in the ISRO spy case.

The CBI has been investigating an alleged conspiracy to implicate former ISRO scientist Nambi Narayanan in the 1994 espionage case. Back in 1994, allegations of transfer of certain confidential documents on India’s space programme to foreign countries by two scientists and four others, including two Maldivian women, surfaced in the media. Nambi Narayanan, the then director of the cryogenic project at ISRO, was arrested along with the then ISRO Deputy Director D Sasikumaran by the Kerala Police.

The former scientist, who was eventually given a clean chit by the CBI, had alleged that the Kerala police had “fabricated” the case and falsely accused him. Naryanan reportedly accused the former DGP, Gujarat, of torturing him and falsifying records to implicate him. The CBI had named him in its FIR and charged Sreekumar, along with several other officials

The Kerala High Court, through its August 13 order, has ruled that there is not even a “scintilla of evidence regarding the petitioners being influenced by any foreign power so as to induce them to hatch a conspiracy to falsely implicate the Scientists of the ISRO with the intention to stall the activities of the ISRO with regard to the development of Cryogenic Engine”.

Justice Ashok Menon observed that unless there are specific materials regarding their involvement, prima facie, it cannot be said that they were acting against the interest of the country. He said that the concerns of the Kerala Police at that stage cannot be said to be without any basis but ultimately it was found that “there is nothing in the accusation made against the offices and the investigation was dropped. The accused in the present crime should not be made to face a similar situation of being forced to undergo the ignominy of being incarcerated in the prison for interrogation at this old age after their retirement for an incident that took place a quarter of a century ago.”

The Bench further noted that there was no indication or material, apart from the rhetoric that a foreign power has a hand in persuading the petitioners. Therefore, it was ruled that the petitioners were entitled to the remedy of anticipatory bail. Justice Menon also said that the investigation was triggered by the apprehension of the Maldivian ladies who were overstaying their Visa.

The court also noted that during the investigation, the officers in the lower rank (such as some of the petitioners) found certain suspicious circumstances, as a result of which, they registered the crime and reported the matter to the higher authorities. Therefore, the Court accepted that the concerns of the petitioners/Kerala Police at that stage cannot be said to be “without any basis.”

The order may be read here:

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The Kerala High Court has quashed a case of defamation against the editor of Malayala Manorama while observing that contemptuous nature of the news item, if it is connected with imputation of truth, which requires publication for the public good will not attract the offence of defamation under the Indian Penal Code.

The Managing Editor, Chief Editor and Printer of Daily Newspaper Malayala Manorama had filed the petition to quash a private complaint filed against them filed under section 500 of IPC. The section 499 of the IPC gives a detailed definition of the offence of defamation:

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. 

There are a few exceptions to this definition as well; the first exception states, “Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact”.

The single judge bench of Justice P. Somarajan, in the order dated November 13, observed that the news item in question reported the true version of an enquiry report submitted by the Vigilance Department recommending criminal action against the complainant.

The court held that this case comes under the first exception under section 499 of IPC (mentioned above),

It is the duty of the fourth estate to publish all news materials, especially having public importance and it is their further duty to comment on the news material with its pros and cons so as to enlighten the society to remain vigil on the matters of public importance…The fourth estate is not expected to shy away from the matters governing public importance, but it is their solemn duty to serve the society with the news item with its pros and cons so as to bring the society more functional and vigil.

The court further commented that the press “being one of the rostrums to address and comment on each and every matter governing public interest/ public importance in a democratic society, the news item published with necessary comments, though sometimes contemptuous, may not itself amount to a defamation”, unless it is lacking good faith and does not concern with public good.

The court also held, “The contemptuous nature of news item, if it is connected with imputation of truth, which requires publication for the public good will not attract the offence and there shall not be any misunderstanding with respect to the requirement to attract Section 499 IPC with the first exception therein.”

The court thus found that the publishing of the news item does not amount to defamation. The court noted that the complainant was in fact booked on criminal charges basis the enquiry report that was published in the news item and the complaint was filed only to “defeat the solemn function vested with the fourth estate and it will tell upon what is behind it” and deemed it as “abuse of process of court”. The proceedings were hence, quashed.

The order may be read here.

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The post Kerala HC: It is duty of press to comment on news to enlighten public appeared first on SabrangIndia.

The Kerala High Court quashed the bail condition imposed by a Sessions court in the state which required the accused to deposit Rs. 25,000 in the PM CARES fund. The accused had appealed against this bail condition by relying on the precedent set by Kerala high Court which held that while granting bail, the court shall not direct the accused to make any cash deposit. This decision of the high court is in turn based on a Supreme Court judgement Moti Ram v. State of Madhya Pradesh (AIR 1978 SC 1594) in which the apex court had held that imposition of cash security or deposit of any amount for grant of bail is unjust, irregular and improper.

Considering this, the single judge bench of Justice C.S. Dias, held that, “It is trite law that the grant of bail is a rule and that jail is only an exception. Undisputedly, the petitioner had applied and was granted bail under Sec.167(2) of the Code of Criminal Procedure, which is his indefeasible right.”

The judge further ordered, “In view of the above categoric declaration of law, I find that Condition No.2 imposed by the learned Sessions Judge, that the petitioner should deposit an amount of Rs 25,000/- towards the Corona Relief Fund is improper and unjust. Hence, I quash the said condition”.

Notably, recently, the Jharkhand High Court, granted bail on two conditions, that they should make donations to the PM CARES fund and that they should download the “Aarogya Setu” app.

Evidently, both high courts have taken contrasting view in this matter and it will be interesting to see which of the two orders will prevail, if either went in appeal to the Supreme Court.

The complete order may be read here.

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