Section 66E IT Act | Clicking Photos Of Question Paper During Exam & Sending It Via WhatsApp Not Violation Of Privacy: Gujarat High Court

The Gujarat High Court has quashed charge of violation of privacy under Information Technology Act lodged against two men, wherein one of them was accused of clicking photographs of a question paper during an examination and sending it to his co-accused brother via WhatsApp. [2026 LiveLaw (Guj) 174]

The applicants had sought quashing of a November 26, 2018 FIR  for the offences punishable under Sections 188(Disobedience to order duly promulgated by public servant) and 120-B (criminal conspiracy) IPC as well as under Section 66-E (Punishment for violation of privacy) of Information Technology Act

The FIR was lodged against the applicants by the complainant who alleged that he was informed by the invigilator that one of the candidates in Block No.13 was taking photographs on his mobile phone and sending it outside.

The complainant went to the block and took the candidate to the management's room. When asked, the candidate disclosed that he had clicked photographs of question paper and sent it through WhatsApp to his brother.

The petitioners argued that no court can take cognizance of offence punishable under Sections 188 IPC in view of the bar under Section 195 CrPC except for the complaint in writing by the public servant in this regard. It was submitted that sending of question papers through WhatsApp to his brother would also not attract Section 66-E of the IT Act.

The counsel for original complainant submitted that the GPSC instructions categorically prohibit carrying of mobile phone.

The Additional Public Prosecutor fairly conceded that neither Section 188 of the IPC nor Section 66-E of the IT Act would be attracted.

Justice PM Raval referred to Section 66E IT Act which states that whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished. 

It further said:

"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".

The court also referred to Section 188 IPC which penalizes the deliberate disobedience of a lawful order promulgated by a public servant.

"However, what has been pointed out by the learned advocate for the original complainant is to the effect that the GPSC has given instruction to the candidates attending the exam as, what should be done and what should not be done, this would not fall within the four corners of Section 188 of the IPC being a promulgation of an order. Assuming for a moment, if said instructions are to be treated as promulgation of an order which squarely fall within the four corners of Section 188 of the IPC then considering the bar of seeking cognizance under Section 195 of Cr.P.C., Section 188 of the IPC is required to be quashed and set aside," the court said. 

Section 195 CrPC states that no Court shall take cognizance of any offences punishable under sections 172 to 188 IPC, except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

After considering the facts on hand, the court observed that it cannot be said that Section 188 IPC was intricately woven with the other offences and invocation of Section 188  IPC prima facie seems to be incorrect.

The court thus directed that offence of Section 188 IPC and Section 66E IT against the applicants be quashed. However the court said,  the FIR itself may be proceeded qua any other offences that the IO may deem fit.

Case title: RAHUL BABULAL PUROHIT & ANR. v/s  STATE OF GUJARAT & ANR

R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 8320 of 2022

Click Here To Read/Download Order

Citation: 2026 LiveLaw (Guj) 174