The Gujarat High Court ruled that photographing an exam question paper and sharing it on WhatsApp does not amount to an offence under Section 66E of the IT Act, 2000. The Court said such conduct may be misconduct but not a privacy violation involving private images.
The Gujarat High Court has recently held that taking photographs of an examination question paper and sharing those images through WhatsApp does not constitute an offence under Section 66E of the Information Technology Act, 2000, which deals with violation of privacy through capturing or transmitting images of a private area.
Justice PM Raval made the observation while partially allowing a petition filed by two accused persons seeking quashing of certain charges registered against them.
The Court clarified that although photographing a question paper during an examination may amount to misconduct or attract other legal consequences, such an act cannot be treated as an offence involving the capture or transmission of private images under Section 66E of the IT Act.
Background of the Case
The matter originated from an incident reported during an examination in November 2018. According to the prosecution case, an invigilator noticed that a candidate inside the examination hall was allegedly using a mobile phone.
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The candidate was accused of clicking photographs of the question paper using the phone and sending those images to another person through WhatsApp. During inquiry, the student allegedly admitted that he had forwarded the photographs to his brother, who was later named as a co-accused in the FIR.
Based on the complaint, authorities registered a case invoking multiple provisions, including Section 66E of the Information Technology Act and Section 188 of the Indian Penal Code (IPC).
Challenge Before High Court
The accused approached the Gujarat High Court seeking to quash the criminal proceedings. They argued that the provisions applied against them were legally unsustainable and that the allegations did not satisfy the ingredients required to constitute the offences.
The Court examined whether the act of photographing and forwarding a question paper could legally fall within the scope of privacy violation under the IT Act.
Section 66E of the Information Technology Act penalises intentionally capturing, publishing or transmitting the image of the private area of any person without consent.
While examining the provision, Justice Raval noted that the photograph involved in the present case was not an image of any person’s private area but merely a photograph of a question paper. The Court observed that sending such a photograph through WhatsApp, even if improper in the examination context, does not attract the offence contemplated under Section 66E.
The Court stated:
“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.”
Accordingly, the High Court removed the Section 66E charge against the accused.
The Court also examined the allegation under Section 188 of the IPC, which deals with disobedience of an order issued by a public servant. The prosecution had relied upon examination instructions prohibiting students from carrying mobile phones into the examination hall. However, the High Court observed that such instructions cannot automatically be treated as an order issued by a public servant for the purpose of invoking Section 188 IPC.
The Court further noted that even where Section 188 IPC is applicable, the law requires a written complaint from the concerned public servant before a court can proceed with the offence. The Court found that this mandatory requirement was not fulfilled in the present matter.
During the hearing, the State prosecution also accepted that the provisions relating to Section 66E of the IT Act and Section 188 IPC were not attracted based on the facts of the case.
After considering the submissions, the High Court concluded that continuing proceedings under these provisions would not be justified.
The Court therefore quashed the allegations under:
- Section 66E of the Information Technology Act, 2000 : violation of privacy by capturing or transmitting private images;
- Section 188 of the Indian Penal Code : disobedience of an order issued by a public servant.
However, the Court clarified that the FIR would not come to an end entirely and that investigation or proceedings could continue regarding any other offences that may be made out from the facts.
The Court made it clear that while taking photographs of question papers inside an examination hall may violate examination rules, such conduct cannot be stretched to include offences meant to protect individuals from unauthorised circulation of private images.
The judgment also reinforces that criminal provisions must be applied strictly according to their legal ingredients and cannot be invoked merely because an act is improper or against institutional rules.
Advocate Maheshkumar K Purohit appeared for the applicants, while Assistant Public Prosecutor Rohan N Ravel represented the State. Advocate Yogini V Parikh appeared for the other respondent.
Case Title: Rahul Babulal Purohit & Anr. v State of Gujarat & Anr.
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