Sharing Of Question Paper On WhatsApp Not A Privacy Offence Under IT Act: Gujarat High Court

The Gujarat High Court has quashed charges under Section 188 of the Indian Penal Code and Section 66-E of the Information Technology Act against two men accused of sharing photographs of a Gujarat Public Service Commission (GPSC) examination question paper through WhatsApp, holding that neither provision was applicable in the facts of the case. However, the Court clarified that the FIR itself would continue and the investigating agency would remain free to proceed in respect of any other offences that may be attracted.

Justice P. M. Raval passed the order while partly allowing a petition filed by Rahul Babulal Purohit and another challenging an FIR registered at Sector-7 Police Station, Gandhinagar, in November 2018. The FIR had invoked Sections 188 and 120-B of the IPC along with Section 66-E of the Information Technology Act after a GPSC candidate allegedly photographed the examination paper on his mobile phone and sent the images to his brother through WhatsApp.

According to the prosecution, invigilators noticed the candidate using a mobile phone inside the examination hall. The candidate was taken to the management room where he allegedly admitted that he had clicked photographs of the question paper and forwarded them to his brother, Rahul Purohit, using WhatsApp.

Appearing for the applicants, advocate Maheshkumar K. Purohit argued that an FIR under Section 188 IPC was legally unsustainable because Section 195 of the Code of Criminal Procedure bars courts from taking cognisance of such an offence except upon a written complaint by the competent public servant. He further contended that forwarding photographs of a question paper could not amount to an offence under Section 66-E of the Information Technology Act.

Advocate Yogini V. Parikh appeared for the original complainant, while Additional Public Prosecutor Rohan N. Raval represented the State.

The Court accepted the applicants' submissions. It observed that the instructions issued by the GPSC prohibiting candidates from carrying mobile phones inside the examination hall could not be treated as an order "promulgated" by a public servant for the purpose of attracting Section 188 IPC.

Justice Raval noted, "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."

The Court further observed that even if the instructions were assumed to fall within Section 188, prosecution through an FIR would still be barred because of the statutory requirement under Section 195 CrPC. It also relied upon an earlier Gujarat High Court judgment on the issue.

On the charge under Section 66-E of the Information Technology Act, the Court found that the provision criminalises capturing, publishing or transmitting images of the private parts of a person without consent. Since the present case involved photographs of a question paper and not any person's private area, the ingredients of the offence were clearly absent.

The Court observed, "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."

Accordingly, the High Court quashed the invocation of Section 188 IPC and Section 66-E of the Information Technology Act from the FIR. At the same time, it made it clear that the investigating officer would be free to continue the investigation in relation to any other offences that may be disclosed by the facts.

The interim relief earlier granted was vacated and the rule was made absolute to the limited extent of removing the two penal provisions from the FIR.

Case Title: Rahul Babulal Purohit and Anr. v. State of Gujarat and Anr.

Date of Order: June 16, 2026

Bench: Justice P.M. Rawal