If you have been charged with stalking, you may feel that ordinary communication or a painful end to a relationship has been turned into a crime. The law defines stalking precisely, and where the police material does not match that definition, a well-prepared discharge application in a stalking case can end the prosecution before trial. The key is to show, from the prosecution's own record, that the specific elements of Section 78 BNS are missing or that a statutory exception applies. Let me walk you through the process step by step.

Step one is identifying the provision. 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(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 other electronic communication. Section 78(2) prescribes up to three years for a first conviction and up to five years for a subsequent conviction.

Step two is checking the other sections invoked. Stalking complaints often add criminal intimidation under Section 351 BNS (formerly Section 506 IPC), insulting modesty under Section 79 BNS (formerly Section 509 IPC), or provisions of the Information Technology Act, 2000. If Section 66A of the IT Act appears, note that the Supreme Court struck it down in Shreya Singhal v. Union of India (2015), and it cannot sustain any charge. Each remaining section must be tested against its own ingredients.

Step three applies if the case began as a private complaint. Under the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Magistrate cannot take cognizance without hearing the accused. This is your earliest opportunity to show that the complaint discloses no offence. Where you live outside the court's jurisdiction, Section 225 BNSS (formerly Section 202 CrPC) requires an inquiry before process is issued.

Step four is securing your liberty and stopping all contact. 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 (formerly Section 438 CrPC), and regular bail under Sections 480 and 483 BNSS. Stop every form of contact with the complainant immediately, including through friends or new accounts. Any further contact may be treated as continuing the offence and will damage both your bail and your defence.

Step five is noting the deadline. After the police report under Section 193 BNSS and cognizance, documents are supplied under Section 230 BNSS. Because stalking carries up to three years even for a first conviction, it is a warrant case. Under Section 262(1) BNSS (formerly Section 239 CrPC), the discharge application must be filed within sixty days of that supply. For complaint cases, Section 268 BNSS (formerly Section 245 CrPC) applies.

Step six is building a communication timeline. Collect from the chargesheet every call record, message, email, and social media interaction relied upon by the prosecution. Arrange them in date order, noting who initiated each communication, what it said, and when the complainant first clearly indicated disinterest, if at all. This timeline is often the single most persuasive exhibit in a stalking discharge application, because the offence turns on repetition after a clear indication of disinterest.

Step seven is drafting. Address the application to the Magistrate with the case number, FIR number, police station, and sections. Set out brief facts, including the nature of the relationship between the parties and any related disputes. Then set out numbered grounds and a prayer for discharge under Section 262 BNSS, or alternatively for framing a charge under the correct lesser provision. The accused and advocate sign it, a vakalatnama is filed, and a copy is served on the Assistant Public Prosecutor.

The grounds should track the elements of Section 78. The first is the absence of repetition. The second is the absence of a clear indication of disinterest before the contact complained of. The third is that the contact was for professional, legal, or practical purposes rather than to foster personal interaction. The fourth is that a statutory exception applies: conduct pursued to prevent or detect crime by a person entrusted by the State, conduct under any law, or conduct that was reasonable and justified in the circumstances. The fifth is that no actual monitoring of electronic communication is shown.

For expert drafting support, our drafting advocates at Aapka Legal Advice regularly prepare discharge applications in stalking and cyber-harassment cases. They will build the communication timeline, match each fact to the elements of Section 78, and compile the relevant precedents. A calm, factual application is far more persuasive than one filled with accusations against the complainant.

Our panel of retired judges can review your draft:

• Who: former High Court judges, retired Sessions Judges and retired Chief Judicial Magistrates experienced in stalking and cyber offences.
• What: they assess whether the timeline and chargesheet genuinely show repetition after a clear indication of disinterest.
• How: they work with the Top Criminal Lawyers in India | Aapka Legal Advice to refine the grounds and anticipate the prosecutor's reply.

Understand the legal standard. Under Section 262(2) BNSS, the Magistrate considers the police report and documents, may examine you physically or by audio-video means, hears both sides, and must discharge you if the charge is groundless. 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. Support the counter-blast argument, where relevant, with State of Haryana v. Bhajan Lal (1992) and Mohammad Wajid v. State of U.P. (2023).

Pay attention to electronic evidence. Call records, chats, and emails 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). Defence documents are generally excluded at the charge stage, following State of Orissa v. Debendra Nath Padhi (2005). But if the police seized complete chat histories showing that the complainant continued to communicate voluntarily, and relied only on selected messages, your advocate may seek the complete record under Section 94 BNSS, as recognised in Nitya Dharmananda v. Gopal Sheelum Reddy (2018).

Check two further points. First, Section 78 applies to "a man," so a woman cannot be charged as a principal under it. Second, the enhanced punishment for a second or subsequent conviction under Section 78(2) requires an actual prior conviction; if the chargesheet treats a first accusation as a subsequent offence, that is an error to raise.

Avoid arguments that will harm you. Never attack the complainant's character. Do not argue that she "wanted" the contact unless the prosecution's own record shows continued voluntary communication. Where the complainant is under eighteen, the Protection of Children from Sexual Offences Act, 2012 may apply, including Section 11 on sexual harassment of a child, and the analysis differs significantly.

At the hearing, the prosecutor replies, and the complainant may be represented. The Magistrate may discharge you entirely, discharge you from stalking while framing a lesser charge such as Section 79 BNS, or frame charges as proposed. Attend every hearing or seek exemption under Section 228 BNSS (formerly Section 205 CrPC).

If the application is rejected, 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 of the Constitution. These remedies protect your rights under Articles 14 and 21. Stalking has traditionally been non-compoundable, so settlement generally requires High Court quashing; 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, filing a discharge application in a stalking case means stopping all contact, acting within sixty days under Section 262 BNSS, building a communication timeline from the prosecution's own record, and showing that repetition, clear disinterest, personal-interaction purpose, or monitoring is missing, or that a statutory exception applies. With experienced criminal lawyers and retired judges guiding you, a well-prepared discharge application in a stalking case can end an unjustified prosecution. This is general legal information, and your specific facts should be reviewed by a qualified advocate.