Gujarat HC Quashes Section 188 IPC and Section 66-E IT Act Charges Against Brothers Who Shared GPSC Question Paper on WhatsApp
The Gujarat High Court held that GPSC exam instructions are not a statutory promulgation under Section 188 IPC, and that sharing a question paper photograph cannot attract Section 66-E of the IT Act.
The High Court of Gujarat at Ahmedabad has partially quashed an FIR registered in 2018 against two brothers — Hardik Babulal Purohit and Rahul Babulal Purohit — who were accused of photographing a question paper during a Gujarat Public Service Commission examination and sending it via WhatsApp. Justice P. M. Raval, sitting singly, held that neither Section 188 of the Indian Penal Code nor Section 66-E of the Information Technology Act, 2000 was attracted on the facts. The FIR itself was not entirely quashed; the investigating officer remains free to proceed under any other offences that may apply.
The FIR and the Allegations
The FIR, dated 26 November 2018, was registered as CR No. Part-II/117/2018 at Sector 7 Police Station, Gandhinagar. The complainant, Mr. Bhautikbhai Govindbhai Patel, was informed by an invigilator that a candidate in Block No. 13 was photographing the question paper on his mobile phone and sending the images outside the examination hall.
The candidate was taken to the management's room. He identified himself as Hardik Babulal Purohit, seated at Seat No. 101000585, and admitted to using a Redmi Note 4 handset to photograph the question paper and send the images via WhatsApp to mobile number 97140 92793 — which he said belonged to his brother, Rahul Babulal Purohit. The FIR was lodged for offences under Section 188 and Section 120-B of the IPC, and Section 66-E of the IT Act.
Both brothers approached the High Court under Criminal Misc. Application No. 8320 of 2022, seeking to quash and set aside the FIR.
The Two Legal Challenges
Counsel for the applicants, Mr. Maheshkumar K. Purohit, raised two distinct arguments. First, he submitted that no court can take cognizance of an offence under Section 188 IPC except on a complaint in writing by the concerned public servant, as required by Section 195 of the Code of Criminal Procedure. An FIR lodged by a private complainant is therefore barred. Second, he argued that sending a photograph of a question paper through WhatsApp to a brother does not attract Section 66-E of the IT Act.
Counsel for the original complainant, appearing through Mr. Jayswal on behalf of Mrs. Yogini V. Parikh, contended that the GPSC had published instructions categorically prohibiting candidates from carrying mobile phones into the examination hall, and that breach of those instructions fell within Section 188 IPC. However, counsel could not demonstrate how the act would attract Section 66-E of the IT Act.
The Additional Public Prosecutor fairly conceded both points: that Section 188 IPC was not attracted, and that the bar under Section 195 CrPC applied; and that Section 66-E of the IT Act was also not attracted on the facts.
Why GPSC Instructions Do Not Constitute a Promulgation Under Section 188 IPC
Section 188 IPC penalises disobedience of an order “duly promulgated by a public servant lawfully empowered to promulgate such order.” The Court read the provision carefully and held that what the GPSC had issued were instructions to candidates about conduct during the examination — what should and should not be done. Such instructions, the Court held, do not amount to a promulgation of an order within the meaning of Section 188.
The Court went further: even assuming, for the sake of argument, that the GPSC instructions could be treated as a promulgated order attracting Section 188, the bar under Section 195 CrPC would still apply. Cognizance of an offence under Section 188 can only be taken on a written complaint by the public servant concerned, not on an FIR lodged by a private individual. The Court relied on its earlier judgment in Govartdhandas Thakoresdas Asrani v. State of Gujarat, Criminal Misc. Application No. 24632 of 2015, in support of this position.
The Court then addressed whether Section 188 was so intricately woven with the remaining offences in the FIR that the entire FIR would have to fall with it. It held that it was not. The invocation of Section 188 appeared prima facie incorrect, and even setting it aside entirely, the rest of the FIR stood independently. The consequence was that only Section 188 was quashed, not the FIR as a whole.
Why Section 66-E of the IT Act Does Not Apply to a Question Paper Photograph
Section 66-E of the Information Technology Act, 2000 punishes whoever intentionally or knowingly captures, publishes or transmits “the image of a private area of any person” without consent, under circumstances violating that person's privacy. The provision defines “private area” as the naked or undergarment-clad genitals, pubic area, buttocks, or female breast.
The Court applied the plain text of the provision to the facts. What applicant No. 2 captured and sent to applicant No. 1 was a photograph of a question paper. A question paper is not the image of a private area of any person. The act of sending the photograph through WhatsApp to his brother could not, by any reading, be characterised as intentionally or knowingly capturing, publishing, or transmitting the image of a private area of any person. Section 66-E was therefore not attracted, and the charge under that provision was also quashed.
Outcome
By order dated 16 June 2026, Justice P. M. Raval quashed and set aside the FIR insofar as it invoked Section 188 IPC and Section 66-E of the IT Act against both applicants. The FIR otherwise survives, and the investigating officer may proceed against the applicants under any other offences that the facts may support. The interim relief that had been granted to the applicants was vacated, and the rule was made absolute to that extent. Direct service was permitted.