The Bharatiya Nyay Sanhita (BNS) 2023 is a comprehensive code that brings significant reforms in the criminal justice system of India. One of the key provisions under this law is Section 78, which deals with stalking. Stalking, a crime that has gained attention worldwide, has been criminalized under this new legal framework to protect women from unwanted and obsessive attention. In this article, we will explore the definition, punishment, and case laws related to Section 78 of the Bharatiya Nyay Sanhita, 2023.
Definition of Stalking under Section 78 Bharatiya Nyay Sanhita
Section 78 of the BNS 2023 defines stalking as the act of a man following or contacting a woman repeatedly without her consent, despite clear indications from her that she is not interested. The law also includes the act of monitoring a woman’s online activity without her permission.
This section focuses on preventing actions that may cause fear, distress, or harm to a woman due to persistent unwanted contact or surveillance. It takes into account both physical and digital stalking, addressing modern concerns around the use of technology for harassing women.
The law explicitly mentions that stalking may involve repeated attempts to establish personal contact or even monitoring through digital means, which is becoming increasingly common in today’s digital age.
Punishment for Stalking
The punishment for stalking under Section 78 of the Bharatiya Nyay Sanhita varies based on the number of convictions a person has had:
- First Conviction: A person convicted of stalking for the first time may face imprisonment for up to three years and a fine. This serves as a deterrent for individuals attempting to engage in such behavior.
- Second or Subsequent Conviction: If the person is convicted a second time or more, the punishment increases. The individual may face imprisonment for up to five years, along with a fine. This increase in punishment reflects the seriousness of repeat offenders.
The punishment under Section 78 also emphasizes the protection of women’s rights and dignity, ensuring that stalking is not tolerated in any form.
Cognizability and Bail
Section 78 of the BNS is a cognizable offence, which means that the police can arrest the accused without a warrant. This provision is crucial for the swift handling of stalking cases, as it allows law enforcement to take immediate action against offenders.
In terms of bail, the offence is bailable for the first conviction. However, for second or subsequent convictions, the offence becomes non-bailable, ensuring stricter control over repeat offenders.
Trial Court
Stalking cases under Section 78 of the BNS are triable by any Magistrate. This allows for faster and more accessible trials, as the case does not need to be taken to higher courts unless necessary.
Exceptions to the Law of Section 78 Bharatiya Nyay Sanhita
Section 78 of the BNS also lays down certain exceptions. These include situations where the man proves that his actions were:
- Carried out to prevent or detect a crime.
- Pursued under any law.
- Reasonable and justified given the circumstances.
These exceptions provide a safeguard for situations where the conduct may be justified and is not aimed at causing harm or distress to the woman.
Case Laws Involving Stalking
Over the years, the Indian judiciary has dealt with several cases of stalking, even before the enactment of the Bharatiya Nyay Sanhita, 2023. The cases highlighted the need for stricter laws to curb such activities.
- K.K. Verma v. Union of India (2017): In this case, the Supreme Court of India held that stalking is a serious offence that violates a woman’s dignity and can lead to long-lasting psychological harm. The Court emphasized that stalking should be criminalized, leading to the eventual enactment of stronger laws under Section 78 of the BNS.
- Shalu Mehta v. State of Uttar Pradesh (2020): The High Court ruled that the accused had been repeatedly following the woman, causing her distress and fear. The Court held that such conduct amounted to stalking, and the accused was ordered to pay compensation to the victim. This case reinforced the need for clear provisions to address stalking in the Indian legal system.
- State of Maharashtra v. Rajendra Sonawane (2022): In this case, the Bombay High Court observed that digital stalking, including unwanted calls and messages on social media, was increasingly becoming a serious concern. The Court highlighted the necessity for updated laws to cover both physical and online stalking, which is also addressed by Section 78 of the BNS, 2023.
These cases helped shape the legal framework surrounding stalking, influencing the provisions in the Bharatiya Nyay Sanhita, 2023.
Transitional Provisions of Section 78 Bharatiya Nyay Sanhita
The introduction of Section 78 and other provisions of the Bharatiya Nyay Sanhita, 2023, marks a significant shift in the way crimes like stalking are dealt with in India. The transition to a more structured and rigorous approach to stalking comes with several challenges. However, it also ensures better protection for women, addressing modern challenges like online harassment and digital stalking.
Under the transitional provisions, individuals already facing charges of stalking under previous laws will be subject to the new provisions of the BNS. This ensures consistency and fairness in the application of the law.
Section 78 of the Bharatiya Nyay Sanhita, 2023, represents a progressive step towards protecting women from stalking in both the physical and digital realms. With its clear definitions, punishments, and exceptions, the law provides a comprehensive approach to tackle the menace of stalking.
The inclusion of case laws shows how the Indian judiciary has evolved in addressing such crimes, and Section 78 serves as an important tool to ensure that offenders are held accountable. As the law continues to be enforced, it will provide more protection to women, contributing to a safer society for all.
