Many people accused of stalking assume that once the police file a chargesheet, a trial is certain. That is not the law. If the chargesheet does not disclose a prima facie case, you can be discharged in a stalking case, because no court may put a person on trial without material showing each element of the offence. Stalking is defined through precise elements and exceptions, so the prima facie test is especially meaningful here. I should also be candid: where the chargesheet shows repeated contact after a clear refusal, supported by call records or messages, the court will usually find a prima facie case. Let me explain what the test requires and how courts apply it.

First, the framework. Stalking was earlier punishable under Section 354D of the Indian Penal Code, 1860, and is now covered by Section 78 of the Bharatiya Nyaya Sanhita, 2023 (BNS), with up to three years for a first conviction and up to five years for a subsequent one. After investigation, the police file a report under Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), formerly Section 173 CrPC. Since stalking is a warrant offence, discharge lies under Section 262 BNSS (formerly Section 239 CrPC), within sixty days of supply of documents under Section 230 BNSS, or under Section 268 BNSS in complaint cases.

A "prima facie case" means that the material, taken at face value and left unrebutted, would reasonably support a conviction. In State of Bihar v. Ramesh Singh (1977) and Union of India v. Prafulla Kumar Samal (1979), the Supreme Court held that grave suspicion justifies a charge, while mere suspicion does not. In State of Maharashtra v. Som Nath Thapa (1996) and M.E. Shivalingamurthy v. CBI (2020), it stressed that the material must disclose each ingredient of the offence. In Sajjan Kumar v. CBI (2010), it confirmed that the court may sift the material for this limited purpose.

For the first limb of Section 78(1), the chargesheet must show that the accused is a man, that he followed a woman and contacted or attempted to contact her to foster personal interaction, that he did so repeatedly, and that he did so despite a clear indication of her disinterest. For the second limb, it must show that he monitored her use of the internet, email, or other electronic communication. Each of these elements requires specific material. The absence of any one of them means there is no prima facie case under that limb.

The prima facie test also requires that no statutory exception plainly applies. Section 78 excludes conduct pursued to prevent or detect crime by a person entrusted by the State, conduct pursued under any law or to comply with a legal condition or requirement, and conduct that was reasonable and justified in the particular circumstances. Where the chargesheet itself shows that the communications were legal notices, debt or rent demands, co-parenting arrangements, or professional correspondence, the material may not disclose a prima facie case of stalking at all.

Stalking chargesheets fail the prima facie test in recognisable ways. Some rely on a single message or call. Some show that the complainant continued to reply and engage for months before the complaint, with no clear point at which she indicated disinterest. Some describe work-related emails as stalking. Some allege "monitoring" based only on the accused having seen her public social media posts. Some rely on screenshots without the certificate required under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 65B of the Evidence Act), as held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020).

The prima facie test also governs the provision charged. Where the material discloses a single offensive message, there may be a prima facie case under Section 79 BNS (formerly Section 509 IPC) but not under Section 78. Where it discloses a threat, criminal intimidation under Section 351 BNS may be considered. A charge under Section 66A of the Information Technology Act, 2000 can never supply a prima facie case, because the Supreme Court struck it down in Shreya Singhal v. Union of India (2015).

Context also matters. In State of Haryana v. Bhajan Lal (1992), the Supreme Court recognised that proceedings instituted with an ulterior motive may be quashed. In Mohammad Wajid v. State of U.P. (2023), it urged courts to read between the lines in vexatious cases. Where the chargesheet shows that the stalking complaint followed a matrimonial, property, or workplace dispute, and contains no earlier complaint of unwanted contact, the court may find no genuine prima facie case.

To test your chargesheet against these requirements, request a confidential chargesheet review with Aapka Legal Advice. An advocate will build a communication timeline from the prosecution's own record, mark the point, if any, at which the complainant clearly indicated disinterest, and identify whether each element of Section 78 is genuinely supported.

Our panel of retired judges, including former High Court judges, retired Sessions Judges, and retired Chief Judicial Magistrates who have decided stalking and cyber-harassment cases, can also assess whether your chargesheet discloses a prima facie case. Working with the Top Criminal Lawyers in India | Aapka Legal Advice, they help you present a focused argument before the Magistrate.

You must understand what does not show the absence of a prima facie case. The complainant's character or personal life is irrelevant. The absence of independent witnesses is not decisive, because stalking often occurs through private communication. The Magistrate does not conduct a mini-trial, as cautioned in Sheoraj Singh Ahlawat v. State of U.P. (2013). Defence documents are generally excluded, following State of Orissa v. Debendra Nath Padhi (2005).

Evidence collected by the police but omitted from the chargesheet can be decisive. If the police seized the complete chat history but relied only on selected messages, the full record may show continued voluntary communication by the complainant. In Nitya Dharmananda v. Gopal Sheelum Reddy (2018), the Supreme Court allowed courts to summon sterling material withheld by the investigation, now under Section 94 BNSS. Your advocate may apply for the complete record.

Where the police find no case and file a closure report, the Magistrate may accept it, take cognizance despite it, or order further investigation. In Bhagwant Singh v. Commissioner of Police (1985), the Supreme Court held that the informant must be heard before closure is accepted. In complaint cases, the proviso to Section 223(1) BNSS requires the Magistrate to hear the accused before cognizance, giving you an early chance to show that no prima facie case exists. In Pepsi Foods Ltd. v. Special Judicial Magistrate (1998), the Court stressed that summoning requires application of mind.

Protect your liberty throughout. The Arnesh Kumar v. State of Bihar (2014) safeguards apply, and a notice under Section 35(3) BNSS should ordinarily precede arrest. Anticipatory bail is available under Section 482 BNSS, and regular bail under Sections 480 and 483 BNSS. Stop all contact with the complainant immediately; further contact could itself supply the repetition the prosecution needs. These protections rest on Articles 14 and 21 of the Constitution.

If charges are framed despite the absence of a prima facie case, revision lies under Section 438 BNSS (formerly Section 397 CrPC), and Sanjay Kumar Rai v. State of U.P. (2021) confirms that framing of charges is revisable. The High Court may also quash under Section 528 BNSS (formerly Section 482 CrPC) and Articles 226 and 227; in Anand Kumar Mohatta v. State (NCT of Delhi) (2019), the Supreme Court confirmed that this power survives the filing of a chargesheet.

Further recourse is available where the complaint was knowingly false. You may consider proceedings under Section 217 BNS (formerly Section 182 IPC), Section 248 BNS (formerly Section 211 IPC), perjury through Section 379 BNSS, criminal defamation under Section 356 BNS, and a civil suit for malicious prosecution. Act only after the case ends in your favour.

In conclusion, if the chargesheet does not show repeated contact to foster personal interaction despite a clear indication of disinterest, or actual monitoring of electronic communication, or if a statutory exception plainly applies, the Magistrate must discharge you under Section 262 BNSS, formerly Section 239 CrPC, or at least frame the correct lesser charge. File within sixty days, rely on the prosecution's own record, and stop all contact. With experienced criminal lawyers and retired judges guiding you, you can be discharged in a stalking case where the chargesheet does not disclose a prima facie case. This is general legal information, and your specific facts should be reviewed by a qualified advocate.