The Gujarat High Court has quashed charges under Section 188 of the Indian Penal Code, 1860 and Section 66E of the Information Technology Act, 2000 against two persons accused of photographing a GPSC examination question paper and sharing it via WhatsApp, holding that neither provision was attracted on the facts of the case. However, the Court clarified that the FIR could continue in respect of any other offences that may be made out during the investigation.
Justice P.M. Raval was hearing a petition seeking quashing of an FIR registered after a candidate appearing in a Gujarat Public Service Commission (GPSC) examination allegedly clicked photographs of the question paper on his mobile phone and forwarded them to his brother through WhatsApp from inside the examination centre. The FIR invoked Sections 188 and 120B of the IPC, along with Section 66E of the Information Technology Act.
With respect to Section 188 IPC, the Court held that the instructions issued by the GPSC regulating the conduct of candidates during the examination could not be equated with an order duly promulgated by a public servant within the meaning of the provision. Even assuming that such instructions amounted to a promulgated order, the Court noted that cognizance of an offence under Section 188 is barred by Section 195 of the Code of Criminal Procedure except upon a written complaint by the concerned public servant, and not on the basis of an FIR.
The Court also found that Section 66E of the Information Technology Act, which criminalises the capture, publication or transmission of images of a person’s “private area” without consent, had no application. It observed that the accused had merely transmitted photographs of the examination question paper and not images of any person’s private area, which is an essential ingredient of the offence under Section 66E.
Accordingly, the Court quashed the invocation of Section 188 IPC and Section 66E of the IT Act from the FIR. At the same time, it clarified that the investigation could proceed in relation to any other offences that the investigating officer may find applicable on the facts of the case.
