Justice P.M.Raval, Gujarat High Court

The Gujarat High Court quashed a First Information Report (FIR) registered against two brothers accused of photographing an examination question paper and transmitting it via WhatsApp, observing that such actions do not attract the penal provisions of Section 188 of the Indian Penal Code (IPC) or Section 66-E of the Information Technology Act (IT Act).

The Court observed that general instructions issued to candidates by the Gujarat Public Service Commission (GPSC) do not amount to a lawful order promulgated by a public servant.

Furthermore, the Court noted that Section 66-E of the IT Act strictly penalizes the non-consensual capturing or transmitting of images of a person's private areas, making it entirely inapplicable to the transmission of an examination paper.

The Bench of Justice PM Raval observed, "However, on the facts on hand, what has been sent by the applicant No.2 to applicant No.1 is the photograph of the question paper captured on mobile phone, thus, the act of sending photograph through WhatsApp to his brother cannot be termed as an act of intentionally or knowingly capturing, publishing or transmitting the image of a private area of any person, so as to attract Section 66-E of the IT Act, thus, the provisions of Section 66-E being not attracting, the same is also required to be quashed and set aside."

Advocate Maheshkumar K Purohit appeared for the Applicants, while Additional Public Prosecutor Rohan N. Raval appeared for the Respondents.

Brief Facts

The applicants approached the High Court seeking to quash and set aside a First Information Report (FIR) registered against them, lodged by the complainant, a representative of the examination management body, upon receiving information from a block invigilator.

It was alleged that one of the applicants, while appearing as a candidate in an examination hall, was caught taking photographs of the question paper using a mobile phone. The candidate subsequently transmitted those photographs outside the examination centre via WhatsApp to his brother, who was arrayed as the other applicant in the case. Consequently, the police registered the FIR for offences punishable under Sections 188 and 120-B of the Indian Penal Code (IPC) alongside Section 66-E of the Information Technology Act (IT Act).

Contentions of the Parties

The Applicants contended that the invocation of Section 188 of the IPC was bad in law and strictly barred under Section 195 of the Code of Criminal Procedure (CrPC), which mandates that no court can take cognizance of such an offence except upon a written complaint by the concerned public servant. It was further urged that the act of transmitting a question paper to a family member over a messaging platform could not, by any stretch of imagination, attract the penal provisions of Section 66-E of the IT Act.

Conversely, the original complainant argued that the Gujarat Public Service Commission (GPSC) had published explicit instructions strictly prohibiting candidates from carrying mobile phones inside the examination hall, and any breach of such regulatory instructions fell within the four corners of Section 188 of the IPC. However, the complainant's counsel could not substantiate how Section 66-E of the IT Act was applicable to the facts of the case.

The State conceded that neither Section 188 of the IPC nor Section 66-E of the IT Act was attracted in the present matter, noting the statutory bar under Section 195 of the CrPC against registering an FIR for the former.

Observations of the Court

The High Court observed that while the applicants were prima facie found to have transmitted the question paper outside the examination hall, the general instructions published by the GPSC for candidates did not amount to a statutory promulgation or a lawful order issued by a public servant as contemplated under Section 188 of the IPC.

The Court further noted that even if the instructions were assumed to be such an order, the statutory bar under Section 195 of the CrPC strictly prohibited the registration of an FIR, making a private written complaint by the public servant the only permissible legal course.

Regarding Section 66-E of the IT Act, the Court observed that the penal provision strictly dealt with the violation of privacy involving the intentional capturing, publishing, or transmitting of images of a person's private areas without consent. Since the case exclusively involved photographs of an examination question paper, the Court held that the essential ingredients of Section 66-E were completely absent.

"However, considering the facts on hand, it cannot be said that Section 188 of the IPC was intricately woven with the other offences that the other offences do not stand alone inasmuch as invocation of Section 188 of the IPC prima facie seems to be incorrect, and assuming for the sake of arguments as noted hereinabove is also invoke the rest of the FIR still stands without the support of Section 188 of the IPC, and therefore, what has been quashed and set aside is Section 188 of the IPC and not the entire FIR", the Court said.

Accordingly, the High Court quashed and set aside the FIR specifically to the extent of Section 188 of the IPC and Section 66-E of the IT Act, while clarifying that the investigating agency could proceed with respect to any other offences deemed fit under the facts of the case.

Cause Title: Rahul Babulal Purohit and Anr. v. State of Gujarat and Anr. [Neutral Citation:2026:GUJHC: 35987]

Appearances:

Applicants: Advocate Maheshkumar K Purohit

Respondents: Additional Public Prosecutor Rohan N. Raval and Advocate Yogini V Parikh.

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