Is agreeing to defamatory WhatsApp group message an offence? Madhya Pradesh High Court answers

The Madhya Pradesh High Court was recently called upon to consider whether the act of liking or supporting a defamatory WhatsApp message posted by others amounted to involvement in the offence of defamation [Air Marshal Harish Masand vs The State of Madhya Pradesh and Others]..Justice Subodh Abhyankar deliberated on this issue while dealing with a petition moved by a retired Air Marshal Harish Masand challenging a trial court’s refusal to take cognizance of a complaint against certain housing society members who he had accused of defamation. .Masand had filed a private defamation complaint against eight persons. However, the trial court took cognizance against only two of the accused - Sandeep Gupta and Lieutenant Colonel Jagdish Pahuja. The Air Force veteran, who had also taken part in the 1971 Bangladesh war, had accused Sandeep Gupta of posting a defamatory message against him in a housing society WhatsApp group. The family members of Sandeep Gupta were alleged to have joined Gupta in criticising Masand's conduct on WhatsApp. Pahuja was also accused of making a defamatory statement on the WhatsApp group. After an additional sessions court agreed with the trial court's decision to take cognisance against only two of the accused persons, Masand moved the High Court for relief and sought to proceed against all accused persons. .The High Court, however, said that the district courts had committed no error. The Single Bench noted that only Gupta and Pahuja had expressed their views in detail, while the others had only made passing remarks in agreement with them."Merely expressing one’s agreement to a post by a one liner may be tantamount to agreeing to the expression made by the other members of the group/accused persons, however, this Court is also required to see the conversation in the WhatsApp group in its entirety, and has to see the context in which it is made, and also the purpose for which the Whatsapp group was formed,” added the Court..It proceeded to look at the nature of the WhatsApp group in which the messages were posted and found that it had been formed to facilitate the activities of the housing society.The Court eventually concluded that Gupta's family members and others apart from the two main accused (Gupta and Pahuja) could not be held liable for defamation as any comment made by them appeared to have been made in the spur of the moment and without any intent to defame Masand. “These comments appear to have been made without any premeditation, and on the spur of the moment only. They appear to have been made without any intention of defaming the petitioner, and in such circumstances, they cannot be held liable for the long posts which are made by only two members of the said group, namely, Sandeep Gupta and Lt. Col. Jagdish Pahuja (Retd.),” the Court said, while dismissing Masand's petition. .The petitioner, Air Marshal Harish Masand, appeared in person.Advocate SS Thakur represented the State.Advocate Rishiraj Trivedi represented the other respondents..[Read Judgment]