BACK TO SECTIONS(2010) 9 SCC 747
Bailable (1st conviction) / Non-Bailable (2nd conviction)Cognizable: CognizableAny Magistrate
Reform Highlights
1
Renumbered from IPC 354D to BNS 78.
2
Both physical and cyber-stalking categories preserved.
3
Tiered punishment — bailable first offence, non-bailable second — maintained.
THE STATUTE
The Clause
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, email or any other form of electronic communication, commits the offence of stalking.
Legal Commentary
Section 78 codifies stalking as a standalone criminal offence — recognising that persistent, unwanted pursuit and surveillance is not harmless obsession but a serious crime that causes profound fear, psychological harm, and frequently escalates into physical violence. The section covers two forms: physical stalking (following, contacting, or attempting to contact despite a clear indication of disinterest) and digital stalking (monitoring internet activity, email, or any electronic communication). The phrase 'clear indication of disinterest' is important — it sets the threshold. A woman who blocks someone on all platforms, changes her phone number, and has sent a written cease-and-desist has given an unmistakable signal. Courts assess all the circumstances. The escalating punishment structure — bailable for a first conviction, non-bailable for a second — reflects the legislature's awareness that stalking is a pattern-based offence. A first incident may be dismissible as a misunderstanding; persistent repetition after legal intervention is a clear signal of dangerous obsession. Section 78's digital prong is particularly significant in the social media age — monitoring someone's social media activity, creating fake accounts to watch them, or using tracking apps without consent are all captured within 'monitoring the use of the internet'. International research shows stalking is a strong predictor of intimate partner violence and femicide.
Landmark Precedents
Santosh Kumar Singh v. State through CBI (Priyadarshini Mattoo) (2010)
RELEVANCE
The law student's murder by her obsessive stalker — ultimately resulting in conviction after prolonged legal battle — was a defining case in India's recognition of stalking as a dangerous crime leading to the 2013 amendment.
Case Simulations
"A man who follows a woman daily to her workplace and sends her hundreds of messages after she has blocked him everywhere — BNS 78."
"An ex-partner who creates fake social media profiles to monitor a woman's activity after she ended the relationship — digital stalking under BNS 78(ii)."
"A man who stands outside a woman's house or college hostel repeatedly despite her parents asking him to leave — physical stalking under BNS 78(i)."
"A person who installs tracking software on an ex-girlfriend's phone without her knowledge to monitor her location — BNS 78(ii)."
Expert Insights
Yes. Section 78(ii) explicitly covers monitoring internet and electronic communication. Obsessively checking someone's public social media without contact may not meet the threshold, but monitoring private accounts through fake profiles, tracking location via apps, or intercepting communications clearly falls within the provision.
The section refers to 'repeated' following or contact. However, even a single instance may support a charge if context shows a pattern — for example, if the accused has a documented history of obsessive behaviour towards the complainant.
Yes, a first conviction for stalking is bailable and carries up to 3 years. But a second or subsequent conviction is non-bailable and can attract 5 years — the law treats repeat stalking as significantly more dangerous.