When facing a stalking charge, many accused persons ask whether the Magistrate can end the case at the outset. The answer is yes. Because stalking is punishable with up to three years even on a first conviction, it is a warrant case, and a Magistrate can grant discharge in a stalking case under Section 239 CrPC, now Section 262 BNSS, whenever the charge is groundless. The Magistrate examines whether the chargesheet shows each specific element of Section 78 BNS and whether any statutory exception applies. Let me explain how this power works.

Start with the provision. Section 239 of the Code of Criminal Procedure, 1973, now Section 262 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), applies to warrant cases instituted on a police report. Section 262(1) BNSS allows the accused to apply within sixty days of supply of documents under Section 230 BNSS. Section 262(2) requires the Magistrate to consider the police report and documents, examine the accused if necessary, physically or by audio-video means, hear both sides, and discharge the accused with reasons if the charge is groundless. For complaint cases, Section 268 BNSS (formerly Section 245 CrPC) applies.

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). Section 78(2) prescribes up to three years for a first conviction and up to five years for a subsequent one. Since both exceed two years, the offence is tried as a warrant case, and the Magistrate has full power of discharge.

When deciding discharge, the Magistrate applies the settled test. 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 R.S. Nayak v. A.R. Antulay (1986), it explained that the court asks whether the material, if unrebutted, would warrant conviction. In Sajjan Kumar v. CBI (2010), it confirmed that the Magistrate may sift the material for this limited purpose.

The Magistrate checks the elements of Section 78(1) against the chargesheet. Under the first limb, the accused must be a man who followed a woman and contacted or attempted to contact her to foster personal interaction, repeatedly, despite a clear indication of disinterest. Under the second limb, he must have monitored her use of the internet, email, or other electronic communication. Each element requires specific material. Where repetition, clear disinterest, personal-interaction purpose, or actual monitoring is missing, the charge is groundless.

The Magistrate must also consider the statutory exceptions. Section 78 excludes conduct pursued to prevent or detect crime by a person entrusted with that responsibility 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 shows that the communications were legal notices, rent or debt demands, co-parenting arrangements, or professional correspondence, the Magistrate may find the exception applies.

The Magistrate can also reshape the charge. Where the material shows a single offensive message but no repetition, the Magistrate may discharge from stalking while considering insulting modesty under Section 79 BNS (formerly Section 509 IPC). Where it shows a threat but not stalking, criminal intimidation under Section 351 BNS may be considered. Where a charge under Section 66A of the Information Technology Act, 2000 has been added, the Magistrate must disregard it, because the Supreme Court struck it down in Shreya Singhal v. Union of India (2015).

For a precise view of how your Magistrate is likely to approach the case, consult a Magistrate-court advocate via Aapka Legal Advice. They will review the chargesheet and electronic evidence, build a timeline of communications, and prepare the correct filing, whether a pre-cognizance response under Section 223 BNSS or a discharge application under Section 262 or 268 BNSS.

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 review your case from the bench's perspective. Working with the Top Criminal Lawyers in India | Aapka Legal Advice, they help ensure your arguments reflect how Magistrates actually decide such applications.

The Magistrate also considers context. Stalking allegations sometimes arise after matrimonial, property, or workplace disputes. In State of Haryana v. Bhajan Lal (1992), the Supreme Court recognised that proceedings instituted with an ulterior motive may be quashed, and in Mohammad Wajid v. State of U.P. (2023), it urged courts to read between the lines. While these principles are most often applied by the High Court, the Magistrate may weigh the timing and content of the complaint when assessing whether a prima facie case exists.

Several technical points also matter to the Magistrate. Section 78 applies to "a man," so a woman cannot be charged as a principal. The enhanced punishment under Section 78(2) for a subsequent conviction requires an actual prior conviction. 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).

In complaint cases, the Magistrate must hear the accused before taking cognizance under the proviso to Section 223(1) BNSS. In Pepsi Foods Ltd. v. Special Judicial Magistrate (1998), the Supreme Court held that summoning requires application of mind. Where the accused lives outside the court's jurisdiction, Section 225 BNSS requires an inquiry before process. For online stalking, territorial jurisdiction may lie where the communications were sent or received, and the Magistrate must be satisfied that the court has jurisdiction.

There are limits on the Magistrate's power. The Magistrate does not conduct a mini-trial, as cautioned in Sheoraj Singh Ahlawat v. State of U.P. (2013). The complainant's character or personal life is irrelevant. Defence documents are generally excluded, following State of Orissa v. Debendra Nath Padhi (2005), though complete chat histories collected by the police may be summoned under Section 94 BNSS, as recognised in Nitya Dharmananda v. Gopal Sheelum Reddy (2018). The Magistrate cannot discharge on the basis of compromise in a non-compoundable offence.

Your liberty is well protected. 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, because further contact may be treated as continuing the offence. These protections rest on Articles 14 and 21 of the Constitution.

If the Magistrate refuses discharge, 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. A discharge is not an acquittal, and the State or complainant may challenge it.

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, after the case ends in your favour.

In conclusion, a Magistrate can grant discharge in a stalking case under Section 239 CrPC, now Section 262 BNSS, because stalking is a warrant offence. The Magistrate tests each element of Section 78 BNS, including repetition, clear disinterest, personal-interaction purpose, and monitoring, applies the statutory exceptions, may reframe the charge, and disregards invalid provisions like Section 66A. File within sixty days. With experienced criminal lawyers and retired judges guiding you, you can seek discharge in a stalking case under Section 239 CrPC or its BNSS equivalent with confidence. This is general legal information, and your specific facts should be reviewed by a qualified advocate.