Case Summary: Kishor Tarone S/o Chintaman Tarone vs. State of Maharashtra & Anr.

The judgment delivered by the Bombay High Court in Kishor S/o Chintaman Tarone vs.  State of Maharashtra & Anr. stands as a cornerstone decision in India’s developing digital  jurisprudence. The case addressed a critical and contemporary legal conundrum: the extent of  criminal liability for social media group administrators for content posted by individual  members. At its heart, the High Court’s ruling reinforces the fundamental principle of  criminal law—that liability is personal and not easily transferable while critically examining  the functional limitations of instant messaging platforms like WhatsApp.

The ruling, by quashing the criminal proceedings against the Applicant, Kishor Tarone, drew  a clear line between the passive role of a group facilitator and the active commission or  abetment of a criminal act. This analysis will delve into the factual matrix, dissect the Court’s  application of vicarious liability, and explore the enduring impact of the judgment on digital  governance and user freedom.

The case originated from a complaint filed by a woman (Non-Applicant No. 2) against two  individuals, Accused No. 1 and the applicant, Kishor Tarone (Accused No. 2). Accused No. 1  posted sexually coloured remarks (filthy language) against the Complainant on a WhatsApp  group. Kishor Tarone was the Administrator of the said WhatsApp group. The core

accusation against the Administrator (Kishor Tarone) was that he failed to take any action despite the objectionable post. Specifically, he neither removed/deleted Accused No. 1 from  the group nor asked him to apologize. The Applicant allegedly expressed his helplessness. An  FIR was registered, and a charge-sheet was filed against both Accused No. 1 and the  Applicant. Kishor Tarone filed an application under Section 482 of the Criminal Procedure

Code to quash the charge-sheet and the proceedings against him. The central legal issue  before the High Court was:

Is a WhatsApp Group Administrator vicariously liable and punishable for objectionable or  illegal content posted by a member of the group, merely by virtue of their status as an  Administrator?

This question required the Court to interpret two main areas of law: the scope of the statutory  offences laid out in the Indian Penal Code (IPC) and the Information Technology (IT) Act,  and the applicability of the doctrine of vicarious liability in the context of criminal  jurisprudence.

The Applicant (Kishor Tarone) was charged with offences under:

1. Section 354-A(1)(iv) IPC: Making sexually coloured remarks. These offences primarily target the person who makes the sexually coloured remark or performs the act intended to insult a woman’s modesty. The Court found that since the Applicant  (Kishor Tarone) did not personally make the offensive post, the actus reus required  for these offences was not fulfilled by him.
2. Section 509 IPC: Word, gesture or act intended to insult the modesty of a woman. 3. Section 107 IPC: Abetment. The most plausible avenue for holding the Administrator liable was Section 107, which defines abetment—criminal responsibility for aiding, instigating, or conspiring to commit an offence. The Complainant argued that the  failure to delete the member or seek an apology amounted to intentional aiding of the  offence. The High Court vehemently rejected this contention, stating that the omission  to act did not amount to instigation, conspiracy, or intentional aiding. Abetment  requires an active participation or mens rea on the part of the abettor, demonstrating  shared knowledge and purpose. The passive failure to exercise one’s administrative  power after the commission of the offence cannot legally translate into the intentional  aiding of that offence, especially when the administrator lacked pre-knowledge of the  criminal intent.
3. Section 67 of the Information Technology Act, 2000: Publishing or transmitting obscene material in electronic form. This section penalizes the person who “publishes or transmits or causes to be published or transmitted” obscene material. The Court  held that merely being the Administrator of the platform where the content appeared

did not equate to actively publishing or transmitting the content, nor did it amount to  ‘causing’ the original member to publish it.

The Bombay High Court adopted and applied the “Common Intention” test (derived from  Section 34 IPC). To hold the Administrator liable for the member’s post, the prosecution  would have to establish two critical elements:

1. A pre-arranged plan or meeting of minds between the member (Accused No. 1) and the Administrator (Kishor Tarone).
2. That the criminal act was committed in furtherance of that common intention, meaning the Administrator knowingly facilitated the specific crime.

The Court held definitively that common intention cannot be established in the case of a  WhatsApp service user merely by acting as a group administrator. When a person creates a  group, they cannot be expected to presume or have advance knowledge of the criminal acts of  every member. The creation of the group itself does not constitute a “pre-arranged plan” to  commit a sexual offence.

The Bombay High Court thoroughly analyzed the function of a WhatsApp group  administrator and delivered a landmark ruling on digital liability. The Court observed that an  administrator’s powers are limited to creating the group and adding or deleting members. Crucially, the Administrator does not have the power to regulate, moderate, or censor the  content before it is posted by other members. Once the group is created, the functioning of  the administrator and the members is virtually at par, except for the power of adding/deleting  members. The Court held that in the absence of a specific penal provision creating vicarious  liability, an administrator cannot be held liable for objectionable content posted by a member.

For an administrator to be held liable, it must be shown that there was a common intention or  a pre-arranged plan acting in concert pursuant to such a plan by the member and the  administrator. Common intention cannot be established merely by the act of creating or being  an administrator of a group. Sections 354-A(1)(iv), 509, and 67 (IPC & IT Act): These  sections require the accused to have personally committed, made, or published the offensive  act or material. Since the applicant (Accused No. 2) did not post the content, the ingredients  of these primary offences were not met. Section 107 (Abetment): The Court found that the  failure of the administrator to remove the member or seek an apology did not amount to  “instigation” or “intentional aiding” of the offensive act. The essential ingredients of abetment

were conspicuously absent. The Bombay High Court quashed the First Information Report  (FIR) and all subsequent criminal proceedings against the applicant, Kishor Tarone,  confirming that he could not be held criminally liable for the actions of a group member  merely because he was the group administrator.

The Kishor Tarone judgment provides a vital legal precedent with wide-ranging implications  for digital citizenship and platform governance:

The ruling provides significant relief and protection to the millions of individuals who  manage or administer social, professional, or family WhatsApp groups. It confirms that the  legal default is non-liability for the acts of others in a group setting. This prevents the chilling  effect that would result if every group organiser faced criminal prosecution for the  unexpected misconduct of a single member. The case clearly distinguishes between the  liability of the Publisher/Author (the member who posted the objectionable content) and the  Facilitator/Administrator. The primary legal focus remains squarely on the individual who  commits the actus reus. By demanding proof of ‘common intention’ or ‘abetment’ (a high  evidentiary burden), the High Court created a necessary firewall, preventing law enforcement  agencies from resorting to the easiest target the Administrator instead of focusing the  investigation on the original perpetrator. While the judgment clarified the current legal  position, it also implicitly highlighted the gap in legislation. The Court noted that its hands  were tied “in the absence of a specific penal provision creating vicarious liability.” This  underscores the ongoing challenge for India’s digital laws, which must evolve to address  online misconduct without unfairly penalizing platform administrators who lack the technical  means to moderate content in real-time.

The judgment provides a significant protective shield to WhatsApp group administrators,  confirming they are generally not vicariously liable for the posts of individual members. This  is vital in an era where thousands of groups exist for social, professional, and family  purposes. It clarified that liability remains with the original author/publisher of the  objectionable content (the member who posted the remark), unless the administrator is  proven to have been involved in a conspiracy or shared the common intent to commit the  offense. The ruling is a key decision in the developing jurisprudence surrounding liability on  instant messaging platforms, distinguishing the passive administrative role from active  participation in a crime.

In conclusion, the Bombay High Court’s ruling in Kishor Tarone is a landmark affirmation of  the rule of individual culpability in the age of instant digital communication. It ensures that  the digital tool (WhatsApp) does not become a trap for its users (Administrators), reserving  criminal sanctions only for those who actively participate in or conspire to commit the crime.