Last week, the Bombay High Court bench of Justice GA Sanap overturned the conviction of two individuals on charges of stalking under Section 354D of the Indian Penal Code (IPC).
The accused had been previously found guilty by a trial court under multiple provisions of the IPC, including Sections 354 (assault or use of criminal force to outrage a woman's modesty), 354A (sexual harassment), and 354D (stalking), along with offences under the Protection of Children from Sexual Offences (POCSO) Act.
A central question in the appeal was whether the solitary instance reported by the victim – when she informed her mother that the accused had followed her to the river while she was fetching water – could legally constitute stalking.
The court carefully analysed the elements of stalking with a particular focus on the requirement for repetitive or persistent behaviour. It examined whether the isolated incident in question met the legal threshold for the offence.
The judge concluded that a single instance could not be construed as stalking – even when considered in the broader context of other related crimes in the case.
The High Court emphasised that, to establish the offence of stalking, the prosecution must prove that the accused repeatedly or persistently followed, watched, or contacted the victim, either directly or through electronic or digital media.
The court clarified that repetition is a mandatory requirement under the law.
This interpretation underscores the importance of clear evidence demonstrating recurring behaviour, which reveals the sureness of intent behind the act, to uphold a conviction under stalking provisions.
A Good Move or a Can of Worms?
The mandatory element of repetition ensures that isolated incidents, even if uncomfortable, do not unfairly fall under the ambit of stalking. For instance, a solitary instance of following someone to their destination, without malicious intent or a pattern of similar behaviour, does not satisfy the legal requirements.
This distinction ensures that the law is applied judiciously, preventing harmless or accidental acts from being unjustly labelled as criminal offenses.
The repetition, as the court observed, reflects a deliberate effort to follow the victim to instill fear, cause distress, or apprehension in their mind.
However, a significant challenge will lie ahead in concretely defining stalking within the framework of criminal law.
The presence of mens rea (latin for 'guilty mind') – the intent to cause distress or harassment – is a critical element, but can manifest in various ways. Many of these actions overlap with other related offenses, complicating the prosecution of stalking as a standalone crime.
The courts often assess stalking based on its impact on the victim, particularly if it induces fear, forces significant lifestyle changes, or causes severe apprehension. This contextual approach adds to the complexity of addressing stalking as a distinct criminal offense, requiring careful evaluation of both the accused’s intent through repetition in his act and the eventual harm caused to the victim.
Earlier in Shri Deu Baju Bodake v The State of Maharashtra (2016), the Bombay High Court did emphasise on the inclusion of stalking as offense in the tragic death of a woman caused by relentless harassment and stalking by the accused.
The offender persistently pursued the victim, including at her workplace, despite her clear refusal and lack of interest. The court underscored the significance of applying Section 354D, alongside abetment to suicide provisions, to ensure accountability.
The 2016 judgment highlighted the grave consequences of persistent stalking, emphasising its link to abetment of suicide and the necessity of stringent legal action under Section 354D IPC.
In contrast to the 2016 case, which addressed the severe outcomes of sustained harassment, the recent judgment by the Bombay High Court called for a more precise understanding of the offense. This clarity is essential to ensure that the law is neither misused nor rendered ineffective in addressing genuine cases.
A Balanced Legal Framework
However, the rising incidence of stalking, as reflected in the National Crime Records Bureau (NCRB) data, underscores the urgent need for stricter enforcement of anti-stalking laws.
Addressing this growing concern demands a multi-pronged approach that includes better victim support systems, public awareness campaigns, and education to challenge societal attitudes that normalise or trivialise stalking.
Cultural narratives that romanticise persistent pursuit must be actively countered to promote a stronger understanding of consent and respect.
A balanced legal framework that ensures fairness for the accused while delivering justice for the victims is essential to effectively combat the pervasive issue of stalking and safeguard individual autonomy and safety.
(Tahini Bhushan is partner at Tatvika Legal, a full-service law firm based out of Delhi-NCR. The views expressed are the author’s own. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)