IPC 354D 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.

Stalking covers persistent unwanted pursuit, whether physical or electronic, and it was made a criminal offence in 2013. What defines it is repetition in the face of a clear indication of disinterest — a single approach is not stalking. Under the BNS it sits at Section 78, and the punishment escalates sharply on a second conviction.

What the section requires

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

• the accused was a man
• he followed a woman and contacted or attempted to contact her to foster personal interaction repeatedly, despite a clear indication of disinterest by her, or monitored her use of the internet, email or any other form of electronic communication
• the conduct does not fall within the exceptions the section provides

What changed from the IPC

The offence and the punishment are carried over from IPC 354D without substantive change. On a first conviction the punishment is imprisonment of either description which may extend to three years, together with a fine. On a second or subsequent conviction it may extend to five years, together with a fine. The exceptions are also retained: conduct is not stalking where it was pursued for the purpose of preventing or detecting crime and the accused was entrusted with that responsibility by the State, where it was pursued under a law or to comply with a condition or requirement imposed by law, or where in the particular circumstances the conduct was reasonable and justified.

How this section is distinguished from related offences

The monitoring limb is what distinguishes this section from ordinary harassment: watching a woman's use of the internet, email or other electronic communication is stalking in itself, without any following. Sexual harassment under Section 75 covers unwelcome advances, demands for sexual favours and sexually coloured remarks, none of which require repetition, whereas stalking requires it. Criminal intimidation under Section 351 requires a threat, which stalking does not — persistent contact without any threat is still within this section. Where the monitoring involved unauthorised access to accounts or devices, the Information Technology Act provisions on hacking and identity theft apply in addition, and they are frequently charged together.

How the case proceeds

The offence is cognizable and, on a first conviction, bailable; on a second or subsequent conviction it is treated more seriously. Trial is before a magistrate. Because the conduct alleged is a course of behaviour rather than a single event, investigations focus on establishing the pattern — the frequency of contact, the dates, and the point at which disinterest was communicated, since conduct before that point is materially different from conduct after it.

Evidence that usually decides these cases

Stalking cases are proved by pattern, so the evidence is cumulative rather than concentrated in a single item. Call detail records and message logs establish frequency and timing, and it is the pattern across weeks or months that carries the weight rather than any individual contact. The point at which disinterest was communicated is the pivot, and evidence fixing it — a message saying so, a block, a written request to stop, a complaint made at the time — is the single most important item in the file. Where electronic monitoring is alleged, login records, device access logs and IP records are the technical evidence, and establishing who operated an account at a given time is the recurring difficulty. CCTV and location records support the physical following limb.

How courts approach sentencing

On a first conviction, imprisonment of either description which may extend to three years, together with a fine. On a second or subsequent conviction, imprisonment which may extend to five years, together with a fine. Sentencing reflects the duration and intensity of the conduct, whether it escalated, and whether it continued after any intervention by police or a court.

Defences that commonly apply

The statutory exceptions are the first thing to consider, since conduct connected to a legal process or to an investigation carried out by someone entrusted with that responsibility is expressly outside the section, as is conduct that was reasonable and justified in the circumstances. On the facts, the most common defence is that disinterest was never clearly communicated, or that the contact ceased once it was, which goes directly to an ingredient. Where the parties were in an existing relationship, commercial dealing or dispute, evidence that the contact had a legitimate purpose — recovering money, arranging the handover of belongings, matters relating to a child — is directly relevant. Where electronic monitoring is alleged, establishing that account access was shared or that another person had access is the usual answer.

How a case under this section typically progresses

The case begins with a complaint that typically describes a course of conduct, and the investigation gathers call and message records covering that period, which takes time as it requires requests to service providers. A charge sheet follows and trial proceeds before a magistrate. Where the conduct is ongoing, protective orders and directions restraining contact are often sought early and are, in practical terms, more significant to the complainant than the eventual outcome of the trial.

Documents worth gathering early

Preserve complete message threads and call logs covering the whole period rather than selected exchanges, since the case is about pattern and a partial record distorts it in either direction. The single most important item is whatever fixes the moment disinterest was communicated — a message, a block record, a written request, or a complaint made at the time. Where electronic monitoring is alleged, obtain login and device access records and any account recovery notifications. Where the contact had a legitimate purpose, keep the documents establishing it, such as the loan record, the property matter or the papers relating to a child. Request CCTV in writing immediately where physical following is alleged.

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

The pivotal fact is when and how disinterest was communicated, because the offence requires repetition despite a clear indication of it. Contact before that indication is not stalking, and establishing the timeline precisely is usually the most productive line of work. Where the allegation concerns electronic monitoring, the technical question of what access was actually exercised, and by whom, becomes central. The statutory exceptions are real and should be considered rather than overlooked, particularly where the conduct was connected to a legal process or an investigation.

Common misunderstandings

"One unwanted approach is stalking."
It is not. The section requires repeated contact or attempted contact despite a clear indication of disinterest, or the monitoring of electronic communication.

"Only physical following counts."
Monitoring a woman's use of the internet, email or other electronic communication is expressly within the section and requires no physical following at all.

"A threat is necessary."
It is not. Persistent unwanted contact is within the section even where nothing threatening is said. Where a threat is made, criminal intimidation under Section 351 applies in addition.

"There are no exceptions."
There are three: conduct pursued to prevent or detect crime by a person entrusted with that responsibility by the State, conduct pursued under a law or to comply with a legal requirement, and conduct that was reasonable and justified in the particular circumstances.

Related BNS sections

• BNS 78 — Stalking
• BNS 75 — Sexual harassment (IPC 354A)
• BNS 77 — Voyeurism (IPC 354C)
• BNS 351 — Criminal intimidation (IPC 506)

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.