IPC 354A in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

Sexual harassment became a distinct criminal offence in 2013, following the Justice Verma Committee, and the BNS carries it forward at Section 75. Its most important feature is that physical contact is not required: three of the four limbs involve no touching at all, and the last of them — sexually coloured remarks — is separately punished at a lower level.

What the section requires

For the offence to be made out, these ingredients have to be established:

• the accused was a man
• he committed one of the acts the section specifies — physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favours, showing pornography against a woman's will, or making sexually coloured remarks
• the conduct was unwelcome

What changed from the IPC

The offence and its punishment structure are carried over from IPC 354A without substantive change. Where the conduct involves physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favours, or showing pornography against a woman's will, the punishment is rigorous imprisonment which may extend to three years, or a fine, or both. Where it consists of making sexually coloured remarks, the punishment is imprisonment of either description which may extend to one year, or a fine, or both. What changed is placement: the BNS gathers the offences against women into a single sequence from Section 74 to Section 79.

How this section is distinguished from related offences

The graded structure within Section 75 matters as much as the boundary with other sections, because sexually coloured remarks carry a third of the punishment that the other limbs do. Section 74 requires an assault or the use of criminal force with intent to outrage modesty, which this section does not. Section 79 covers words, sounds or gestures intended to insult a woman's modesty and overlaps heavily with the sexually coloured remarks limb, though it carries up to three years. Running parallel to all of this is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, which provides a civil and administrative remedy through an Internal Committee; that proceeding is entirely separate from the criminal case and neither substitutes for the other.

How the case proceeds

The offence is cognizable and bailable and is tried by a magistrate. Where the conduct occurred at a workplace, there will very often be a parallel proceeding before an Internal Committee under the 2013 Act, and the two run on different timelines and different standards of proof. The provisions on the recording of a woman's statement apply within this group of offences.

Evidence that usually decides these cases

Where the conduct is in writing, the messages are the case, and preserving complete threads in original form on the original device rather than as extracts is what determines whether they can be relied on. Where it is spoken, the complainant's account is central and its consistency across the first complaint, the internal inquiry if there was one, the police statement and the testimony is examined closely. In a workplace, the internal complaint and its date, attendance and access records, seating arrangements and reporting lines all establish the context in which the conduct is said to have occurred. Independent witnesses — colleagues unconnected to either side — carry disproportionate weight. The timing of the complaint against the timing of any appraisal, disciplinary step or promotion decision is invariably examined by both sides.

How courts approach sentencing

Rigorous imprisonment which may extend to three years, or a fine, or both, for physical contact and advances, demanding sexual favours, or showing pornography against a woman's will. Imprisonment of either description which may extend to one year, or a fine, or both, for sexually coloured remarks. Sentencing reflects whether the conduct was isolated or sustained and whether the accused held a position of authority over the complainant.

Defences that commonly apply

The most direct defence is that the conduct did not occur or was not unwelcome, the latter turning on the surrounding communications and on how the relationship was conducted at the time rather than on how it is characterised afterwards. Where messages are relied on, completeness matters greatly: a partial extract frequently reads very differently from the full exchange, and producing the whole thread is often the strongest answer available. Where the complaint arises in an employment context, the sequence of events is routinely relied on, particularly where it followed an adverse appraisal or disciplinary action. Objective records that contradict the account of where the parties were — attendance logs, access records, travel documents — are the most useful material because they do not depend on either account being believed.

How a case under this section typically progresses

The matter begins with a complaint and the recording of the complainant's statement, followed by investigation and a charge sheet, with trial before a magistrate. Because the offence is bailable, bail is not usually the contested issue. Where a proceeding under the 2013 Act is running in parallel, it will ordinarily conclude long before the criminal case, and its findings are commonly produced in the criminal court by whichever side they assist.

Documents worth gathering early

Preserve complete message and email threads in original form on the original device, together with call records for the period. Where a workplace is involved, obtain the internal complaint and its date, the Internal Committee record, attendance and access logs, and any appraisal, transfer or disciplinary papers from the surrounding period, since the sequence of events is almost always in issue. Note the names and details of colleagues unconnected to either side. Keep the organisational chart or reporting structure, because whether the accused held authority over the complainant affects both the criminal case and the parallel proceeding.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

Establish first which limb of the section is invoked, because the difference between the three-year limbs and the one-year remarks limb is substantial. Where there is a parallel workplace proceeding, treat the two together rather than separately: what is said in the internal inquiry will be produced in the criminal court, and an inconsistent account across the two forums is the most damaging thing that can happen in either. The conduct alleged is often a course of behaviour rather than a single event, so the particulars — dates, settings, who was present — are what the case will ultimately be tried on.

Common misunderstandings

"Sexual harassment requires physical contact."
It does not. Three of the four limbs — demanding sexual favours, showing pornography against a woman's will and making sexually coloured remarks — involve no contact at all.

"All four limbs carry the same punishment."
They do not. Sexually coloured remarks carry up to one year; the other three carry rigorous imprisonment of up to three years.

"An internal workplace inquiry replaces the criminal case."
It does not. The proceeding under the 2013 Act is separate, with a different standard of proof and different consequences, and both can run at once.

"The BNS created this offence."
It did not. Sexual harassment was introduced into the IPC as Section 354A by the 2013 amendments; the BNS carries it forward as Section 75.

Related BNS sections

• BNS 75 — Sexual harassment
• BNS 74 — Assault with intent to outrage modesty (IPC 354)
• BNS 79 — Word or gesture intended to insult modesty (IPC 509)
• BNS 78 — Stalking (IPC 354D)

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.