BNS Section 78 : Stalking

Section 78 of BNS is part of Chapter 5 - Offences Against Women and Children Of Sexual Offences in Bharatiya Nyaya Sanhita 2023 Act. It criminalises the act of stalking, which involves repeated and unwanted contact, surveillance, or harassment of an individual, either in person or through digital means, causing fear or distress.

Definition of BNS Section 78

Section 78 of the BNS 2023 States:
(1) Any man who—
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, e-mail or any other form of electronic communication, commits the offence of stalking
Provided that such conduct shall not amount to stalking if the man who pursued it proves that—
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Explanation and Illustration of BNS Section 78

A man is guilty of stalking if he engages in either of the following behaviors:

Persistent Contact or Attempts Despite Disinterest:
Following a Woman: The offender physically or otherwise follows a woman repeatedly
Contacting Despite Disinterest: Despite the woman clearly showing she is not interested, the man continues attempts to foster personal interaction
Example: A man repeatedly approaches a coworker for coffee or personal meetings even after she has explicitly refused.
Monitoring a Woman's Digital Activity:
Monitoring her internet usage, social media, email, or other electronic communications.
Example: A man constantly tracks a woman's social media updates or hacks her email to monitor her activities.

Exceptions to Stalking: The conduct is not considered stalking if the accused can prove that:

Purpose of Preventing or Detecting Crime

The actions were undertaken as part of lawful duties, such as by a police officer investigating a crime

Example: A police officer follows a suspect under lawful orders.

Compliance with Law:

The actions were necessary to fulfill a legal requirement or comply with a lawful condition

Example: Serving a legal notice that requires tracking or locating someone.

Reasonable and Justified Conduct:

The conduct was reasonable under specific circumstances.

Example: Following someone to return their lost belongings.

Sub-section (2): Punishment for Stalking

First Conviction:

Imprisonment of up to 3 years and a fine

Example: A man convicted for stalking a woman for the first time.

Second or Subsequent Conviction:

Imprisonment of up to 5 years and a fine.

Example: A repeat offender who continues stalking despite being convicted earlier.

Purpose of the Law:

Protect women from harassment and unwanted advance

Recognise stalking as a serious offense that affects a woman's safety, privacy, and dignity

Impose harsher penalties on repeat offenders to deter persistent harassment.

Examples of Stalking:

Physical Stalking: A man follows a woman to her workplace or home repeatedly, despite her protests.

Cyberstalking: A man repeatedly sends messages or tracks a woman's location on social media without her consent.

Disclaimer: The examples provided are for educational purposes only and do not constitute legal advice. They should not be used for legal proceedings or decision-making. For specific legal matters, please consult a qualified legal professional.

Key Points For BNS Section - 78

Stalking under BNS-78 specifically includes the following behaviors:

Persistent Contact and Following: When a man continuously follows or repeatedly contacts a woman in an attempt to establish a personal connection, despite her expressed lack of interest. This includes any unwanted communication or attempts to form a personal relationship.

Electronic Surveillance: Monitoring a woman’s internet, email, or other electronic communications without her consent. This may involve unauthorised access to her online activities, electronic surveillance, or hacking into her communication channels.

Exceptions to Stalking: The behavior mentioned above is not considered stalking if the accused can prove one of the following:

Crime Prevention or Detection: The actions were carried out with the aim of preventing or detecting crime, and the accused was legally designated by the State with such responsibility. This means the actions were part of official duties in law enforcement or security roles.

Differences Between Section 78 of BNS and its equivalent IPC Section

This section outlines the key differences between Section 78 of BNS and its equivalent IPC section 354D focusing on their distinct approaches to definitions, interpretations and legal principles within the framework of criminal law.

BNS Sections/ Subsections	Subject	IPC Sections	Summary of comparison
78	Stalking.	354D	No change.

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FAQs about Section 78 of the Bharatiya Nyaya Sanhita (BNS)

Are there exceptions to what qualifies as stalking?

Yes, stalking does not apply if the actions are part of crime prevention, legal compliance, or are reasonable and justified in the specific circumstances

What is the punishment for stalking under Section 78?

A first conviction can lead to imprisonment for up to three years and a fine. For subsequent convictions, the punishment increases to up to five years of imprisonment

Can online actions be considered stalking?

Yes, monitoring a woman's online activities, such as her use of email or social media, without consent, is classified as stalking

Is stalking a bailable offense?

No, stalking under Section 78 is a non-bailable offense, meaning the accused cannot obtain bail easily

Can stalking be committed by following someone physically?

Yes, physical following is a form of stalking, provided the victim has clearly shown disinterest in the interaction

Is stalking punishable for a first offence?

Yes, a first offence is punishable with up to three years of imprisonment and a fine

How does the law treat repeated offenses of stalking?

For second or subsequent convictions, the punishment can extend to five years of imprisonment, with a fine