Statutory Provision

Section 78 of the Bharatiya Nyaya Sanhita, 2023 defines and penalises the offence of stalking.
This provision is substantially similar to Section 354D of the Indian Penal Code, 1860, and continues the same legislative intent with minor structural changes.

Definition of Stalking (Section 78, BNS)

Under Section 78(1) of the BNS, a person commits the offence of stalking if he:

1. Follows a woman and contacts, or attempts to contact such woman repeatedly, despite a clear indication of disinterest by the woman; or
2. Monitors the use by a woman of the internet, email, or any other form of electronic communication,

and such conduct causes fear, distress, or intrusion into the privacy of the woman.

Punishment

• First conviction:
  Imprisonment up to three years and fine.
• Second or subsequent conviction:
  Imprisonment up to five years and fine.

Exceptions under Section 78(2), BNS

The offence of stalking does not apply where the conduct is:

1. Pursued for the purpose of preventing or detecting crime by a person entrusted with such responsibility;
2. Pursued under any lawful authority; or
3. Reasonable and justified, considering the facts and circumstances of the case.

Essential Ingredients of Stalking

To constitute stalking under Section 78, the following elements must be present:

1. Repeated conduct (not a single isolated act);
2. Clear indication of disinterest by the woman;
3. Physical following or electronic surveillance/monitoring;
4. Absence of lawful justification; and
5. Resulting fear, alarm, or violation of privacy.

Relevant Case Laws

Although judicial interpretation under the BNS is evolving, courts continue to rely on precedents under Section 354D IPC, as the provisions are pari materia.

1. State of Punjab v. Major Singh (AIR 1967 SC 63) (contextual relevance)

The Supreme Court emphasized the importance of protecting the dignity and privacy of women, which forms the foundational rationale for offences like stalking.

---

2. Kalandi Charan Lenka v. State of Odisha (2017 SCC OnLine Ori 878)

The Orissa High Court held that repeated unwanted communication and online harassment amount to stalking and criminal intimidation. The court recognized cyber stalking as a serious invasion of a woman’s privacy.

---

3. Shivani v. State of Maharashtra (2019 SCC OnLine Bom 5634)

The Bombay High Court observed that persistent attempts to contact a woman despite her refusal clearly satisfy the ingredients of stalking under criminal law.

---

4. Tanya Arora v. State (NCT of Delhi) (2016 SCC OnLine Del 5123)

The Delhi High Court highlighted that stalking laws are intended to curb obsessive behaviour that causes psychological distress, even where no physical harm is caused.

Illustrative Examples

🔹 Physical Stalking
A man repeatedly follows a woman to her workplace and residence despite her clearly telling him to stop. This constitutes stalking under Section 78(1)(a) BNS.

🔹 Cyber Stalking
A person continuously monitors a woman’s social media activity, sends repeated messages and emails after being blocked, and creates fake accounts to track her online presence. This falls under Section 78(1)(b) BNS.

🔹 Not Stalking (Exception)
A police officer lawfully tracks a suspect’s online activity during an investigation. This is covered under the statutory exception and does not amount to stalking.

Constitutional Perspective

The offence of stalking directly protects a woman’s right to life and personal liberty under Article 21, particularly the right to privacy and dignity, as recognized in Justice K.S. Puttaswamy v. Union of India (2017).

Conclusion

Section 78 of the Bharatiya Nyaya Sanhita, 2023 strengthens legal protection against stalking by recognizing both physical and cyber forms of harassment. By criminalising persistent and unwanted conduct, the provision aims to safeguard women’s privacy, autonomy, and mental well-being, while balancing legitimate and lawful actions through carefully carved exceptions.