Introduction:
The Gujarat High Court, in Rahul Babulal Purohit & Anr. v. State of Gujarat & Anr., reported as 2026 LiveLaw (Guj) 174, delivered an important judgment clarifying the scope and applicability of Section 66E of the Information Technology Act, 2000, which criminalizes the violation of privacy through the capturing, publishing, or transmission of images of a person’s private area without consent. The decision also examined the legal requirements for prosecuting offences under Section 188 of the Indian Penal Code and the statutory bar contained in Section 195 of the Code of Criminal Procedure.
The case arose from an incident during a Gujarat Public Service Commission (GPSC) examination conducted on November 26, 2018. According to the prosecution, an invigilator noticed suspicious activity by a candidate seated in one of the examination blocks. The invigilator informed the complainant that the candidate appeared to be using a mobile phone to take photographs during the examination. Upon inquiry, it was allegedly discovered that the candidate had photographed the question paper using his mobile device and transmitted the images through WhatsApp to his brother outside the examination centre.
Based on these allegations, an FIR was registered against the two applicants for offences punishable under Section 188 of the Indian Penal Code, dealing with disobedience to an order promulgated by a public servant, Section 120-B of the IPC concerning criminal conspiracy, and Section 66E of the Information Technology Act relating to violation of privacy.
The applicants approached the Gujarat High Court seeking quashing of the FIR to the extent it invoked Section 188 IPC and Section 66E of the IT Act. They argued that neither provision was attracted on the facts alleged in the FIR and that the continuation of criminal proceedings under those provisions constituted an abuse of the process of law.
The matter came before Justice P.M. Raval, who was required to determine whether photographing a question paper and forwarding it through WhatsApp could legally amount to a violation of privacy under Section 66E of the IT Act and whether the examination instructions issued by GPSC could form the basis of prosecution under Section 188 IPC. The judgment ultimately became significant for its careful interpretation of the statutory ingredients of both offences and for reaffirming the procedural safeguards contained in criminal law.
At a broader level, the decision highlights the importance of ensuring that criminal statutes are applied strictly in accordance with their legislative purpose. While examination malpractice may constitute misconduct and may attract other legal consequences, the Court emphasized that criminal provisions cannot be stretched beyond their intended scope merely to secure prosecution. The ruling therefore serves as an important reminder that criminal liability must be founded upon the precise ingredients of the offence alleged.
Arguments of the Parties:
The applicants challenged the FIR primarily on the ground that the offences invoked against them were legally unsustainable. Their counsel argued that the allegations, even if accepted in their entirety, did not disclose the commission of an offence under Section 66E of the Information Technology Act.
It was submitted that Section 66E is a privacy-related provision intended to protect individuals from unauthorized capture, publication, or transmission of images depicting their private areas. The applicants argued that the question paper photographed during the examination was not an image of any person’s private area and therefore the essential ingredients of the offence were entirely absent. According to them, the legislative object of Section 66E is to safeguard bodily privacy and personal dignity rather than to regulate examination misconduct.
The applicants further contended that the FIR also wrongly invoked Section 188 of the IPC. It was argued that prosecution under Section 188 requires violation of an order duly promulgated by a public servant. Mere instructions or guidelines issued by an examination authority could not automatically be treated as an order contemplated under the provision. The applicants maintained that GPSC examination instructions concerning the carrying of mobile phones did not constitute a promulgated order within the meaning of Section 188.
Apart from this substantive argument, the applicants also relied upon the procedural safeguard embodied in Section 195 of the Code of Criminal Procedure. They submitted that even if Section 188 were assumed to be attracted, a court could not take cognizance of the offence unless a written complaint had been filed by the concerned public servant or an authorized officer. Since the FIR had not been initiated in accordance with the mandatory procedure prescribed by law, the prosecution under Section 188 was legally barred.
The applicants therefore requested the High Court to exercise its inherent jurisdiction and quash the proceedings insofar as they related to the offences under Section 188 IPC and Section 66E of the IT Act.
The original complainant opposed the petition and argued that the applicants had clearly violated the examination rules. It was pointed out that GPSC instructions expressly prohibited candidates from carrying mobile phones into the examination hall. According to the complainant, the act of photographing the question paper and transmitting it outside the examination centre undermined the integrity of the examination process and warranted criminal action.
The complainant sought to justify the registration of the FIR by emphasizing the seriousness of examination-related misconduct. It was argued that the actions of the applicants were not innocent or accidental but were deliberate and calculated. The transmission of examination material to an outsider suggested an attempt to gain an unfair advantage, thereby compromising the fairness of the competitive examination.
However, during the course of hearing, the Additional Public Prosecutor adopted a fair and objective stand. The State acknowledged that upon a proper reading of the relevant statutory provisions, neither Section 188 IPC nor Section 66E of the Information Technology Act appeared to be attracted on the facts alleged in the FIR.
This concession by the prosecution became significant because it reflected the State’s acceptance that criminal liability must be based upon the strict requirements of the law rather than merely upon the perceived seriousness of the conduct in question.
Thus, while the complainant stressed the violation of examination instructions and the integrity of the recruitment process, the applicants focused on the legal ingredients of the offences invoked. The dispute ultimately turned not on whether the conduct was improper but on whether it legally satisfied the statutory requirements of the provisions under which prosecution had been initiated.
Court’s Judgment:
Justice P.M. Raval allowed the application in part and quashed the offences under Section 188 IPC and Section 66E of the Information Technology Act while permitting the investigation to continue in respect of any other offences that the investigating agency might consider applicable.
The Court first examined the scope of Section 66E of the Information Technology Act. The provision criminalizes the intentional or knowing capture, publication, or transmission of an image of the private area of any person without consent under circumstances violating that person’s privacy.
The Court observed that the language of the provision is specific and narrowly focused. The offence is concerned with the protection of personal privacy, particularly bodily privacy, against unauthorized intrusion. The legislature intended to penalize acts involving the capture or dissemination of intimate images of individuals without consent.
Applying this statutory framework to the facts of the case, the Court found that the allegations were wholly unrelated to the privacy interests protected by Section 66E. The material transmitted through WhatsApp was merely a photograph of a question paper. No image of any person, much less the private area of a person, had been captured or transmitted.
The Court categorically held that sending a photograph of a question paper to another person could not be equated with capturing, publishing, or transmitting an image of a private area. Consequently, one of the essential ingredients of Section 66E was completely absent.
The judgment emphasized that criminal provisions must be interpreted according to their plain language and legislative purpose. Since the facts alleged did not fall within the scope of Section 66E, the invocation of the provision was held to be legally unsustainable.
The Court then turned to the applicability of Section 188 IPC. This provision penalizes disobedience to an order duly promulgated by a public servant. The Court noted that the complainant relied upon GPSC instructions prohibiting the use or possession of mobile phones during the examination.
However, the Court observed that examination instructions could not readily be equated with an order promulgated by a public servant as contemplated under Section 188. The provision contemplates a specific category of lawful orders issued by public authorities and intended to regulate public conduct. The GPSC instructions, in the Court’s view, did not naturally fall within that category.
The Court further held that even if the instructions were assumed for the sake of argument to constitute a promulgated order, the prosecution would still face a serious legal obstacle arising from Section 195 of the Code of Criminal Procedure.
Section 195 creates a statutory bar against courts taking cognizance of offences under Sections 172 to 188 IPC except upon a written complaint made by the concerned public servant or an authorized officer. The provision is mandatory and designed to prevent frivolous or unauthorized prosecutions.
The Court found that the requirements of Section 195 had not been satisfied in the present case. Consequently, even on the assumption that Section 188 was attracted, prosecution under that provision could not legally continue.
Another important aspect of the judgment was the Court’s observation that Section 188 IPC was not intricately connected with any other offence alleged in the FIR. Therefore, its removal from the case would not affect the investigation into any other offences that might otherwise be made out.
The Court ultimately concluded that the invocation of both Section 188 IPC and Section 66E of the Information Technology Act was prima facie incorrect and unsupported by the facts alleged in the FIR. Accordingly, it exercised its inherent powers to quash those charges.
At the same time, the Court clarified that the FIR itself would not stand completely quashed. The investigating officer was permitted to proceed with the investigation in relation to any other offences that might be disclosed by the material on record. This approach ensured that while legally untenable charges were removed, the investigative process was not unnecessarily curtailed.
The judgment serves as a significant precedent on the interpretation of Section 66E of the Information Technology Act. It underscores that privacy offences under the statute are specifically concerned with unauthorized intrusion into personal privacy and cannot be invoked merely because digital communication technology is used in connection with some other alleged misconduct. Equally important is the Court’s reaffirmation of the mandatory procedural safeguards governing prosecutions under Section 188 IPC. By insisting upon strict adherence to statutory requirements, the Gujarat High Court reinforced the principle that criminal law must operate within clearly defined legal boundaries and that courts must remain vigilant against the misuse or overextension of penal provisions.