Mitali Palnitkar
Published On: February 24, 2022 at 17:02 IST
On February 23, 2022, the Kerala High Court ruled that the Admin of a WhatsApp group cannot be held liable if a member of the group posts malicious content in the group.
Justice Kauser Edappagath said, “Vicarious Criminal Liability can be fastened only when a Statute prescribes so. Therefore, an Admin of WhatsApp group can be held liable for an objectionable post by a group member in the presence of a Special Penal Law creating Vicarious Liability.”
The Court noted that it is a basic principle of Criminal Jurisprudence that ‘Mens Rea’ must be an ingredient of an Offence.
The Petitioner was the creator and Admin of a WhatsApp group named ‘FRIENDS’. There were two more Admins, one of them was the First Accused. In March 2020, the First Accused posted a Porn Video of Children engaged in sexually explicit acts.
Thereafter, a Crime was registered against the First Accused under Sections 67B (a), (b), and (d) of the Information Technology Act, 2000 and Sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act (POCSO Act).
Later, the Petitioner was arrayed as the Second Accused as he was the Creator and Co-admin of the group. He was aggrieved by this and approached the High Court.
The Petitioner was represented by Advocates Anil Kumar M Sivaraman and C Chandrasekharan. The Respondents were represented by the Senior Public Prosecutor MK Pushpalatha.
The question before the Court was whether the Petitioner could be vicariously held liable for the actions of the First Accused. The Court relied upon a few Precedents and noted that Vicarious Liability can be fastened only by the means of a Statutory Provision.
Therefore, as no Special Penal Law creates Vicarious Liability, the Admin of WhatsApp group cannot be held liable for an objectionable post by group members.
The Court observed that an Admin can only add or remove members from the group and does not have any control otherwise.
It emphasized, “There was nothing on record that suggests that the Petitioner published, Transmitted, Browsed, or Downloaded the said material.”
The Court found that the basic ingredients of Offence were absent and thus, it could exercise its extraordinary Jurisdiction under Section 482 of The Criminal Procedure Code.
Therefore, the Petition was allowed to set aside the Proceedings pending against the Petitioner.