Bharatiya Nyaya Sanhita, 2023
Section 78 BNS: Stalking, Punishment, Bail and Meaning
Section 78 of the Bharatiya Nyaya Sanhita, 2023 defines and punishes stalking. It covers repeated following or attempts at personal contact despite a woman's clear indication of disinterest, as well as monitoring a woman's use of the internet, e-mail or other forms of electronic communication.
Current legal position: The Bharatiya Nyaya Sanhita, 2023 is Act No. 45 of 2023. Its provisions, except Section 106(2), came into force on July 1, 2024. Section 78 is therefore the current BNS provision dealing with stalking.
What is stalking under Section 78 BNS?
Section 78(1) applies to a man who follows a woman and contacts, or attempts to contact, her repeatedly to foster personal interaction despite a clear indication of disinterest by the woman.
It also covers a man who monitors a woman's use of the internet, e-mail or any other form of electronic communication.
Essential ingredients of Section 78
The statutory language identifies two principal forms of conduct that may amount to stalking:
- following a woman and repeatedly contacting, or attempting to contact, her to foster personal interaction despite her clear indication of disinterest; or
- monitoring a woman's use of the internet, e-mail or another form of electronic communication.
In cases involving repeated physical or personal contact, the requirement of repeated conduct despite a clear indication of disinterest is expressly stated in the provision. Electronic monitoring is separately included in Section 78(1)(ii).
Statutory exceptions to stalking
The proviso to Section 78(1) states that the conduct will not amount to stalking if the man proves that it falls within one of the specified exceptions:
- the conduct was pursued for preventing or detecting crime and the accused had been entrusted by the State with responsibility for prevention and detection of crime;
- the conduct was pursued under law, or to comply with a condition or requirement imposed by a person under law; or
- in the particular circumstances, the conduct was reasonable and justified.
Important: These are statutory exceptions. Their application depends on the particular facts and evidence of the case.
Punishment under Section 78(2) BNS
| First conviction | Imprisonment of either description up to 3 years and fine |
|---|---|
| Second or subsequent conviction | Imprisonment of either description up to 5 years and fine |
Unlike provisions that prescribe a statutory minimum term, Section 78 specifies the maximum term that may be imposed for stalking: up to three years for a first conviction and up to five years for a second or subsequent conviction, in addition to fine.
Is Section 78 BNS cognizable and bailable?
| First offence | Cognizable, bailable and triable by any Magistrate |
|---|---|
| Second or subsequent conviction | Cognizable, non-bailable and triable by any Magistrate |
These classifications come from the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023. "Cognizable" means that, subject to the applicable procedural law, a police officer may arrest without warrant. For a first stalking offence the Schedule classifies the offence as bailable; a second or subsequent conviction is classified as non-bailable.
Reporting a Section 78 offence under the BNSS
Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 contains special safeguards for recording information where a woman alleges an offence under specified BNS provisions, including Section 78. In such a case, the information is to be recorded by a woman police officer or any woman officer.
Section 173 also contains additional safeguards where the person against whom the specified offence is alleged is temporarily or permanently mentally or physically disabled, including recording at the person's residence or another convenient place, assistance of an interpreter or special educator where applicable, and videography of the recording.
Physical stalking and cyber stalking
Section 78 expressly addresses both repeated personal pursuit and electronic monitoring. Following and repeated attempts to foster personal interaction despite clear disinterest fall within clause (i), while monitoring internet, e-mail or other electronic communication falls within clause (ii).
Whether particular conduct satisfies the statutory elements depends on the facts, including the nature and repetition of the conduct, the indication of disinterest where clause (i) is invoked, and the evidence relating to electronic monitoring where clause (ii) is invoked.
Official legal sources
For the authoritative statutory text, see the India Code portal and the Ministry of Home Affairs - New Criminal Laws page. The Ministry of Home Affairs also published the commencement notification appointing July 1, 2024 as the commencement date for the BNS, except Section 106(2).
Important note
This page provides a general explanation of Section 78 of the Bharatiya Nyaya Sanhita, 2023. Application of the provision in an individual case depends on the facts, evidence, procedural law and applicable judicial decisions.