Circulating Objectionable Photos on WhatsApp Falls within 'Public View'

Source: Bombay High Court (Nagpur Bench) 

Why in News? 

A Single Judge Bench of Justice Yanshivraj Khobragade, in Nikhil Madhukar Thepale v. State of Maharashtra (2026), held that circulating objectionable videos or photographs of a person belonging to a Scheduled Caste or Scheduled Tribe on WhatsApp is an act within 'public view' and can attract the SC/ST (Prevention of Atrocities) Act, 1989. The Court dismissed the accused's appeal seeking anticipatory bail. 

What was the Background of Nikhil Madhukar Thepale v. State of Maharashtra (2026) Case? 

• The victim belonged to the Scheduled Caste/Scheduled Tribe community. The accused allegedly demanded sexual favours from her. 
• When she refused to maintain a sexual relationship with him, the accused allegedly shot nude videos and photographs of her. He then circulated them, from a different number, on WhatsApp to her husband, sister-in-law and other relatives. 
• An FIR was lodged on 5th November 2025 under the following provisions:  
  • Sections 77 (Voyeurism) and 78 (Stalking) of the Bharatiya Nyaya Sanhita, 2023, 
  • Sections 66E (Violation of Privacy) and 67 (Publishing Obscene Material in Electronic Form) of the Information Technology Act, 2000, and 
  • Sections 3(1)(r) (Intentional Insult in Public View) and 3(1)(w)(ii) (Sexual Words, Acts or Gestures Towards an SC/ST Woman) of the SC/ST Act. 
• The Special Court rejected the accused's anticipatory bail applications twice. He then approached the Bombay High Court by way of a criminal appeal. 
• In March 2026, the same judge had granted interim relief to the accused, observing at that stage that the FIR did not attract the provisions of the SC/ST Act. 
• The accused argued that recording or circulating objectionable videos on a social media platform like WhatsApp would not attract the SC/ST Act, since such circulation is not in 'public view'. 

What were the Court's Observations? 

• On Circulation via WhatsApp Being Within Public View: The Court held that circulating objectionable videos and photographs of the victim on social media like WhatsApp from the accused's mobile is an act within the public view. 
• On Prima Facie Ingredients Under the SC/ST Act: On the material placed on record, the Court found that the necessary ingredients of offences under Sections 3(1)(w)(ii) and 3(2)(va) of the SC/ST Act were prima facie made out. 
• On Departure From the Earlier Interim View: The Court acknowledged that it had earlier granted interim relief on the view that the SC/ST Act was not attracted. However, after examining the material on record, it found a strong case against the accused and took a different view. 
• On the Conduct of the Accused: The Court noted that the accused had been absconding since the registration of the crime. It held that, in these circumstances, he was not entitled to anticipatory bail. 
• Outcome: The appeal was dismissed and anticipatory bail was denied. 

What is the SC/ST (Prevention of Atrocities) Act, 1989? 

Background & Purpose: 

• The Act was enacted to prevent atrocities against members of the Scheduled Castes and Scheduled Tribes. It provides for Special Courts for the trial of such offences and for the relief and rehabilitation of victims. 
• It gives effect to the constitutional guarantees under Article 17 (Abolition of Untouchability), Article 15 (Prohibition of Discrimination) and Article 21 (Protection of Life and Personal Liberty). 

Relevant Provisions Involved in the Case: 

• Section 3(1)(r): Punishes a person who is not a member of an SC/ST and who intentionally insults or intimidates, with intent to humiliate, a member of an SC/ST in any place within public view. 
• Section 3(1)(w): Punishes a person who is not a member of an SC/ST and who:  
  • (i) intentionally touches a woman belonging to an SC/ST, without her consent, where the act is of a sexual nature, or 
  • (ii) uses words, acts or gestures of a sexual nature towards a woman belonging to an SC/ST, knowing that she belongs to such community. 
• Section 3(2)(va): Punishes a person who commits any offence specified in the Schedule to the Act against a person or property, knowing that such person is a member of an SC/ST, with the punishment prescribed for that offence along with fine. 

Bar on Anticipatory Bail: 

• Section 18: The provision for anticipatory bail does not apply to a person accused of an offence under the Act. This corresponds to Section 438 of the CrPC, now Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. 
• Section 18A: Inserted by the 2018 Amendment, it provides that no preliminary enquiry is required before registering an FIR and no prior approval is needed for arrest. It also reiterates the bar on anticipatory bail notwithstanding any judgment or order of a court. 
• In Prithvi Raj Chauhan v. Union of India (2020), the Supreme Court upheld Section 18A. It clarified that courts may still grant anticipatory bail where the complaint does not make out a prima facie case under the Act. 

Appeal Against Bail Orders: 

• Section 14A: An appeal lies to the High Court against any judgment, sentence or order of a Special Court, including an order granting or refusing bail. 

What is the Concept of 'Public View' Under the SC/ST Act? 

Meaning: 

• 'Public view' means that the act must take place in the presence of, or be capable of being seen or heard by, members of the public. It is wider than a 'public place'. 

Judicial Interpretation: 

• In Swaran Singh v. State (2008), the Supreme Court distinguished between a 'public place' and a 'place within public view'. It held that even a private place can be within public view if members of the public are present and can see or hear the act. 
• In Hitesh Verma v. State of Uttarakhand (2020), the Supreme Court held that an insult within the four walls of a building, where no member of the public is present, is not within public view. It also held that the insult must be on account of the victim's caste. 

Application to Digital Platforms: 

• The present ruling extends 'public view' to the digital sphere. Circulating objectionable content on WhatsApp makes it accessible to others, and the act therefore falls within public view. 
• Courts have, however, taken differing views on social media. The Karnataka High Court recently held that a WhatsApp status shared only with contacts is not enough to constitute publication for an offence of promoting enmity under Section 505(2) IPC. Whether online content falls within public view thus depends on the facts and the specific offence involved.