It has become appallingly obvious that our technology has exceeded our
Amidst lockdown when the whole nation is fighting COVID 19, strange news had
recently appeared from the national capital. Given the fact that the netizens
are more active on their social media during this period, it was the most
trending news on the internet and had gone viral sparking debates among the
lobby of feminists over misogyny and the patriarchal societal mindset.
The facts are that a few guys in their 11th and 12th standards with a group
named Bois Locker Room allegedly made certain remarks on underaged girls which
were sexist and objectified them. Some even went to the extent of discussing
raping them. As per the news reports, few of them have been arrested under 66A
of the IT Act for cyberbullying.
The laws in various statutes restricting speech which is guaranteed under Indian
Constitution and international statutes like ICCPR, 1966 and UDHR are intra
vires constitution except when they do not fulfil the criteria laid down in
A.19(2) of the Constitution or the tests laid down by the courts in subsequent
interpretations. Looking at such provisions will help us in analysing the
present case as there is no direct law addressing the issue, for instance,
doxing, which is related to leaking or making public the private identifiable
information about an individual. It is done without the consent or knowledge of
the individual. Under A.21 of Indian constitution and recent judgement of the
court in Justice K. S. Puttaswamy v. Union Of India
, the right to privacy
is an integral part of the right to life and is guaranteed under part-III of the
The Law Obscenity
292 deals with obscene content. In Ranjit D Udeshi v. State of Maharashtra
 this section was held to be intra vires A.19(2). The ingredients of this
section are, the matter is obscene
the accused has sold or distributed or imported or printed or exhibited or
attempted or offer to do so.
The word obscene is open-ended and not defined. And Merriam Webster dictionary
defines it as disgusting to the senses or abhorrent to morality or
virtue. The necessary requirement is that it should excite impure thoughts
in the minds of a reasonable or an ordinary person (reasonable person test).
So again the facts and circumstances become relevant in deciding upon obscenity
as was laid down in Sreeram Saksena v. Emperor .
In Sukanta Haldar v. State of W.B  it was observed for it to be
obscene it should rouse immoral sex. It was also held in R v. Hicklin
, that test for obscenity is to see whether it depraves and corrupts those
whose minds are open to such immoral influences…
In the present scenario the accused has perhaps distributed the photos in the
group and also aroused the feelings by passing lewd comments with his friends on
293 mentions the punishment corresponding to the preceding section for a period
extending to 3 years and fine on first conviction, broadly speaking. The
requirement here is that the accused should be under the age of 20 years and
should have distributed as in the present scenario (if it passes the test of the
With new technology in place it is very easy today to morph any photograph and
with super-fast internet it has become handy to disseminate the same within a
fraction of seconds. 463 of IPC is perhaps the most appropriate provision to
deal with fake photos and alteration under criminal law .
Chapter XVIII deals with offences related to documents and property marks. 463
of IPC deals with forgery. In R v. Ritston , it was simply
described as every instrument which fraudulently purports to be what it
464(1)(b) clearly brings out the picture that if such a document is transmitted
by electronic mode fraudulently and dishonestly it would fall under this
offence. 464(2) deals with alteration or modification of the document without
lawful authority. All these points are further solidified in Daniel Hailey
Walcott v. State of Madras . In Chunku v. Emperor  the court while
explaining dishonestly observed that criminal intention to cause wrongful loss
or wrongful gain to another person is necessary. Also, actual loss or gain is
not necessary but the intention.
In the impugned scenario the accused allegedly used the photos of victims
without explicit permission or their knowledge and went to the extent of
modifying them. Along with this, there was perhaps a clear intention to belittle
the reputation of the victim by modifying the photos dishonestly. Punishment
for this offence is stipulated in 465.
Information Technology Act, 2000
66 punishes offenders for sending grossly offensive information through
communication service for a period extending to three years with fine. However,
in Shreya Singhal v. UoI  the supreme court applied clear and present danger
test and held the section ultra vires constitution using Brandenburg v.
Ohio  (considered to be of persuasive value). But the police still uses
it till date because there has been no amendment by the parliament to give
effect to the Supreme Court decision.
67, 67A, 67B of this Act punishes a person for transmitting or publishing
material which is:
- obscene (or)
- contains sexually explicit act (or)
- depicts children in sexual/obscene act
via electronic medium respectively. The punishment on first conviction is for a
term extending to 3 years with fine vide 67 and punishment on first
conviction is imprisonment for a term extending to 5 years with fine vide
section 67A, 67B IT Act. The proviso grants exceptions to these sections only on
grounds of public good and knowledge of the masses, neither of which is the
scenario here (even remotely).
Para 31 in State of Uttar Pradesh vs. Aman Mittal  says Section 67 read with
Sections 67-A and 67-B is a complete code relating to the offences that are
covered under the IT Act
The Court in Sharat Babu Digumarti v. Government (NCT of Delhi)  struck down
the offences Under Sections 292 and 294 of Indian Penal Code in view of the
provisions of Section 67 of the IT Act. This highlights the importance and
purpose for which special legislation has been enacted.
503 deals with criminal intimidation and two primary requirements for the
section are threat of injury and causing alarm and the inherent intent. In
Amulya Kumar Behera v. Nabhganga Behera  the High Court of Orissa stated
that intention to cause alarm is the sine qua non for an offence under this
section. However, it is immaterial whether the other person is alarmed or not.
The gist behind this section is that mental injury in some cases is more painful
than physical injury. Also, it should be illegal in nature and in impugned case
the alleged threat was of rape which is completely unacceptable and illegal in
nature. It was observed in the case of Raghubar Dayal v. Emperor  that
inhibiting the businessman from his right to trade was a criminally intimidating
Punishment for criminal intimidation is stipulated in 506. However, 507 is an
aggravated form since the punishment is increased by two more years because of
the fact that intimidation, in this case, is done anonymously or the person
impersonates himself as someone else.
509 deals with the modesty of women. If the offender utters a word or any
gesture or any act thereby with the intention that it is heard and more so it
intrudes upon the privacy of a woman then it shall fall under the category of
this offence. In the State of Punjab v. Major Singh  Bachawat, J. had
the essence of a woman's modesty is her sex and
Mudholkar, J. said that:
when any act is done to or in presence of a woman is clearly suggestive of sex
according to common notions of mankind that act must fall within the mischief of
the section. Therefore in the current scenario, it is perhaps suggestive
from the chats that the intention of the accused was to allegedly rape the
victim and in the group chat it was it is imminent that the kind of language
used and the comments passed over the morphed pictures of the women outraged the
modesty of women.
499 deals with defamation and requires either making or publishing allegedly
defamatory statements about a person in the form of other words or writing or
visible representations which have the capability of harming a person's
reputation along with the intention for the same.
Reputation, here means not what a person thinks about himself but
instead what others think about his standing and the same has been highlighted
in several cases. In Valmiki Faleiro v. Mrs. Lauriana Fernandes
 the court said that it is how a person is held by others. Therefore
reputation should not be confused with self-esteem. That is to say it should be
done to a third person which lowers the estimation of the victim's character. In
criminal law, intention to cause harm to reputation is sine qua non of
defamation offence was held in Sunilakhya v. HM Jadwet . However,
this case pertains to written defamation in the form of libel which includes
pictures too and can come under visible representations.
Note that a defamation suit can be of a civil nature also in which the intention
is not the requirement which is not the case in a criminal proceeding. However
malice plays a key role in civil disputes related to defamation. In the Palani
Asari case  though ill-will was absent, the high court held that words were
prima facie defamatory and malice may be presumed.
There is a possibility that even the defendant later uses this argument to file
a defamation suit against the victim as his reputation was deeply hurt due to
sharing of his private chat resulting in a biased view of the issue. It may be
presumed that there was malice to defame the defendant and a suit can be
instituted as in Vivek Goenka v. YR Patil . Notwithstanding this,
there are exceptions to this rule which include imputation of truth for the
public good, which is a justification for being a statement of truth for public
benefit (or) caution in good faith which is to protect the interest of self
and the public good at large so that it does not happen to someone else again.
It is therefore left to the court to analyse in given facts and circumstances
500 is the punishment section for the preceding section on defamation. The
imprisonment extends to two years with/without fine as per the circumstances of
The basic difference between outraging modesty and defamation
is that in case of the former mere intention if it is gathered from the pieces
of evidence is sufficient, however, in the former case the exact words which
were allegedly defamatory in nature have to be put out at the beginning itself
when the allegation is made.
354D IPC deals with stalking and Cl.(1)(ii) deals with online stalking.
These provisions were introduced post Nirbhaya incident via Criminal Law
(Amendment) Act, 2013 famously known as Nirbhaya Act. It is related to
monitoring the use by a woman of the internet or any other electronic means. The
provisos exempt the accused on three grounds which include reasonable and
justified conducts. In the present case, it in no way appears to be falling
under the exemptions perhaps. The offence is punishable and the same is
described in Cl.(2).
The Pocso Act
In the Preamble of the Act it has been category clearly mentioned that it
protects children from sexual assault, sexual harassment, pornography and it
provides for establishment of special courts which means a speedy trial with the
Child as defined under 2(d) of this Act means any person below the age of 18
The matter can be requested to try before the POCSO court also as Dipak Misra,
J. opined in Eera through Manjula Krippendorf vs. State (Govt. of NCT of Delhi)
and Ors. that ...the very purpose of bringing legislation of the present nature
is to protect the children from the sexual assault, harassment and exploitation,
and to secure the best interest of the child  and the protection of the
dignity of the child is the spine of the legislation.  which was concurred
by R.F Nariman, J.
11(v) of this Act deals with sexual harassment and the offence is said to be
- a person has sexual intent
- threatens to use real or fabricated depiction through electronic, film
or digital or any other mode, of
- any part of the body of the child or the involvement of the child in a
Sexual intent here is a matter of fact and up to the court to
determine. 12 of this Act mentions punishment for a term extending to three
years with fine.
Note: (para 131,132 Independent Thought vs. Union of India )
42 of this Act deals with alternate punishment and holds that the offender
found guilty of such offence (which includes 354 offences and 509 IPC) shall be
liable to punishment under this Act or under the Indian Penal Code as provides
for punishment which is greater in degree.
Also, 42A holds that POCSO provisions will be supplementary to the provisions of
IPC (or any other law) and in case of any inconsistency the provisions of POCSO
will have an overriding effect over any other law.
Intermediary Liability And Individual Liability
The liability of Instagram which is an intermediary in this case is exempted
for hosting third-party content vide 79 of IT Act, 2000.
In the stages of crime, the preliminary motive gives a background as to what is
the reason behind some act in question. However, it cannot be used as a basis to
convict a person. The current discussion revolves around the stage of
contemplation of a crime, which is where the intention is formed. It is rather a
popular phrase that one should be punished only to the extent one was involved,
i.e, proportionality is the philosophy of punishment
Chapter IV of the POCSO Act (16, 17 specifically) deals with abetment
and attempt stages of crime like in IPC and stipulates punishment for
the same. In this scenario prima facie it does not appear to transgress the
attempt stage but falls within abetment.
107 IPC classifies abatement into three categories viz., instigation, conspiracy
or intentional aid and these were held to be essentials to complete abatement as
a crime in Malan v. State of Maharashtra .
As far as liability of the prime accused goes, who allegedly spoke of rape in
the group chat, it falls into the first category perhaps which deals with
instigation as was held in the case of Protima Dutta v. State of West
Bengal  that it should provoke, incite, urge or encourage another person
to do any act which is prohibited by law. 108 IPC (explanation 2) further
supplements this and makes it categorically immaterial that commission of
offence should be there, and the kind of effect it has on the person who is
instigated by the accused. For instance in the State of Maharashtra v.
Pandurang Ramji  though the desired result of murder was not
accomplished the component of instigation was present.
There are three possible outcomes for any offence. It can either be committed
(or) not committed (or) a hurt is caused as a result of abetment. In the
impugned scenario the offence is not committed. As per the facts of the case,
the court can categorise the abetment into the category of rape or gang rape
(later one seems more logical as per facts). The punishment for the same is
covered under 115 IPC, which punishes the accused for the term of seven years.
However other persons do not fall into the category of abettor as they were
silent spectators  and were not active participants in the alleged plan of
the commission of the offence. 107(3) IPC further makes it clear that mere
non-interference is not sufficient but omission should lead to a breach of legal
obligation that is to say a negligent act despite being in contravention of
legal duties does not amount to abetment by illegal omission which was held in
the case of Subash Chandra Bebarta v. State of Orissa.
This is also supplemented by a plethora of cases where the apex court held that
vicarious liability could not be extended to the group admin and the same
argument can be forwarded in this case.
In Ashish Bhalla vs Suresh Chawdhary , the Delhi High Court had
clarified that defamatory comments made by any of the members could not hold
other members or the admin of the group liable.
What can be said is that as a responsible citizen they should have left the
group if they were against the views expressed.
However in Union of India (UOI) and Ors. vs. Ramesh Bishnoi , Section
3 of the Juvenile Justice (Care and Protection of Children) Act, 2015,viz.,
(xiv) Principle of a fresh start: All past records of any child under the
Juvenile Justice system should be erased except in special circumstances.
had an overriding effect over charges framed under 354, 447 and 509 IPC
and the accused was acquitted. Taking a cue from it, it would be hard to frame
the accused strictly under these sections in this case.
Since the accused are juveniles below the age of 18 and this case does not
involve a commitment of heinous offences there is the likelihood that the
juvenile justice board will look into the mental maturity of the accused and the
kind of counselling and correction required as to how they see the society. This
aspect plays the key role as the deciding factor when it comes to the sentencing
part which is different from the establishing guilt part. The court looks into
the background and circumstances of the accused and all associated factors while
The court would examine the component of Mens Rea in light of the facts and
circumstances, i.e, the intent behind doing a particular act. It would look upon
the mental framework and whether the accused desired to bring about a certain
result and whether he possessed the necessary foresight that it can result in
that. As in this case, the accused used the photos of the victim without consent
to the audience of his friends.
Though he did not directly harass the victim, since the victim had no knowledge
of it, his intent was perhaps clear from the fact that he mentioned that he
would allegedly rape the victim. This is nothing but a serious expression of an
intent to commit an act of unlawful violence which is gravest and unthinkable.
If the threats were real, they carry with them serious consequences on the
health, livelihood and social standing of an individual. U.S cases Cohen v.
California  and Virginia v. Black  have highlighted this
Lastly, looking at the issue in totality and establishing the liability of every
member and their involvement is important. Going by the age-old principle of
whoever seeks equity must come with clean hands, there is no place for vengeance
in law. Therefore the one alleging charges must also be looked upon objectively
without preconceived notions irrespective of gender and public pressure. Media
trials, outrage and name shaming to make the case sound biased should be
*This article and the facts stated are based upon the news reporting and
Instagram shares of the leaked chats*
-  3 QB 360
- Digital Alteration of Photographs and Intellectual Property Rights by
Suvrajyoti Gupta,Journal of Intellectual Property Rights Vol 10, November
2005, pp 491-498
- LRICR 203
- AIR 1968 Mad 349
- AIR 1931 All 258
- 395 U.S. 444 (1969)
- MANU/SC/1592/2016, AIR 2017 SC 150
- (1995) CrLJ 3559 (Ori)
- AIR 1931 All 263
- AIR 1967 SC 63
- (1882) 1 Weir 613
- MANU/SC/0876/2017, https://indiankanoon.org/doc/69624144/
- MANU/SC/1298/2017, https://indiankanoon.org/doc/87705010/
- AIR 1960 Bom 393
- (1977) CrLJ (NOC) 96 (Cal)
- (1971) ILR (Bom) 1061
- Trilochan v. Karnail, AIR 1968 Punj 416
- (1974) CrLJ (Ori)
- 403 U.S. 15, 21 (1971)
- 538 U.S. 343 (2003)