A stalking accusation can be deeply unsettling, especially when it arises from a past relationship, a workplace interaction, or online communication that you never intended as harassment. Let me reassure you that the law defines stalking precisely, and where the police material does not match that definition, the case cannot proceed to trial. An accused can be discharged in a stalking case where the chargesheet does not show repeated following or contact despite a clear indication of disinterest, or monitoring of electronic communication, outside the statutory exceptions. Let me explain the law, the procedure, and your protections.

Stalking was earlier punishable under Section 354D of the Indian Penal Code, 1860, and for offences on or after 1 July 2024, it is covered by Section 78 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Section 78(1) covers a man who follows a woman and contacts, or attempts to contact, her to foster personal interaction repeatedly despite a clear indication of disinterest, or who monitors her use of the internet, email, or any other form of electronic communication. Under Section 78(2), a first conviction carries imprisonment up to three years and a fine, and a second or subsequent conviction up to five years and a fine.

Section 78 also contains important exceptions. Conduct does not amount to stalking if it was pursued for the purpose of preventing or detecting crime by a person entrusted with that responsibility by the State, if it was pursued under any law or to comply with any legal condition or requirement, or if in the particular circumstances it was reasonable and justified. These exceptions are often decisive in cases arising from workplace communications, legal notices, or legitimate business dealings.

Because even a first conviction carries up to three years, stalking is a warrant case. For a police-report case, discharge lies under Section 262 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), formerly Section 239 CrPC, within sixty days of supply of documents under Section 230 BNSS. For a private complaint, Section 268 BNSS (formerly Section 245 CrPC) applies, and the proviso to Section 223(1) BNSS requires the Magistrate to hear the accused before taking cognizance. The Magistrate must discharge the accused if the charge is groundless.

The test is well settled. In Union of India v. Prafulla Kumar Samal (1979) and State of Bihar v. Ramesh Singh (1977), the Supreme Court held that grave suspicion justifies a charge, while mere suspicion does not. In Sajjan Kumar v. CBI (2010), it confirmed that the Magistrate may sift the material for this limited purpose. Applied to stalking, the Magistrate asks whether the chargesheet shows each element of Section 78 against the accused.

The first ground for discharge is the absence of repetition. The first limb of Section 78 requires following and contacting or attempting to contact the woman repeatedly. A single message, one encounter, or an isolated call does not ordinarily satisfy this element. Where the chargesheet describes only one or two isolated contacts, this ground is strong.

The second ground is the absence of a clear indication of disinterest. The law requires that the woman had clearly indicated her disinterest and that the contact continued despite it. Where the record shows that she continued to communicate voluntarily, or never clearly communicated her disinterest before the complaint, this element may be missing. This often arises after the end of a relationship, where communication continued on both sides for some time.

The third ground is that the contact was not aimed at fostering personal interaction. The first limb targets contact aimed at building a personal relationship. Contact for professional, legal, or business purposes, such as work emails, legal notices, rent demands, or communications about shared children or property, may fall outside the offence or within the exception for conduct that was reasonable and justified.

For advice specific to your situation, the cyber and criminal law team at Aapka Legal Advice can review the chargesheet, call records, messages, and any electronic evidence. Stalking cases frequently turn on the exact sequence of communications, and an experienced advocate can reconstruct that timeline from the prosecution's own record.

Our panel of retired judges, many of whom have decided stalking and cyber-harassment cases, can also review your case from the bench's perspective. Working with the Top Criminal Lawyers in India | Aapka Legal Advice, they help identify which elements of Section 78 are genuinely missing.

The fourth ground concerns electronic monitoring. The second limb requires that the accused monitored the woman's use of the internet, email, or other electronic communication. General online activity, such as viewing a public social media profile, may not amount to monitoring in the statutory sense. The chargesheet must show actual monitoring, and electronic evidence must be supported by a certificate 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 fifth ground concerns invalid or inapplicable provisions. Stalking complaints sometimes invoke Section 66A of the Information Technology Act, 2000, which the Supreme Court struck down in Shreya Singhal v. Union of India (2015). The Supreme Court later directed that no prosecutions continue under that provision. Any charge under Section 66A is legally unsustainable. Other charges, such as criminal intimidation under Section 351 BNS or insulting modesty under Section 79 BNS, must be supported by their own ingredients.

The sixth ground is that the complaint is a counter-blast. Stalking allegations sometimes arise after a matrimonial, property, or workplace dispute. 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. A timeline showing that the complaint followed other proceedings can be decisive.

You must also know what will not work. The complainant's character or personal life is irrelevant. Her credible testimony can support conviction. Arguing that she "encouraged" the contact, without material in the record showing continued voluntary communication, will not help. Defence documents are generally excluded at the charge stage, following State of Orissa v. Debendra Nath Padhi (2005), though sterling material withheld by the police, such as complete chat histories, may be summoned under Section 94 BNSS, as recognised in Nitya Dharmananda v. Gopal Sheelum Reddy (2018).

Your liberty is well protected. Under the old code, a first stalking offence was bailable; confirm the current classification under the BNSS First Schedule. 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, because any further contact may be treated as continuing the offence. These protections rest on Articles 14 and 21 of the Constitution.

If discharge is refused, 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 and Articles 226 and 227. Stalking has traditionally been non-compoundable, so settlement generally requires High Court quashing, which is discretionary; confirm the current position under Section 359 BNSS.

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.

To conclude, yes, an accused can be discharged in a stalking case under Section 262 BNSS where the chargesheet does not show repeated contact aimed at fostering personal interaction despite a clear indication of disinterest, or actual monitoring of electronic communication, or where the statutory exceptions in Section 78 BNS apply. Invalid provisions such as Section 66A IT Act cannot sustain a charge. File within sixty days and stop all contact. With experienced criminal lawyers and retired judges guiding you, you can pursue every lawful route to be discharged in a stalking case. This is general legal information, and your specific facts should be reviewed by a qualified advocate.