Cyberstalking — your legal options
Cyberstalking in Indian law is governed by two intersecting regimes — the stalking offence under Section 78 of the Bharatiya Nyaya Sanhita, 2023 [Section 354D of the Indian Penal Code, 1860, inserted by the Criminal Law (Amendment) Act, 2013 after the recommendations of the Justice J S Verma Committee], and the Information Technology Act, 2000's content overlay (Sections 66E, 67, 67A and 67B) which catches the obscene, sexually explicit and child-sexual-content material that cyberstalking conduct typically escalates into. The combination is what gives the prosecution its substantive reach.
Stalking in Indian law was, until 2013, an offence without a name. The Indian Penal Code, 1860 carried no dedicated provision; complaints of persistent following, repeated unwanted contact and intrusive monitoring were forced into the procrustean frame of Section 354 (assault to outrage modesty), Section 509 (word, gesture or act intended to insult the modesty of a woman) or Section 506 (criminal intimidation), with predictable evidentiary difficulty. The Justice J S Verma Committee — constituted in the aftermath of the December 2012 Delhi gang-rape and tasked with reviewing the criminal law on sexual offences — recommended a dedicated stalking provision. The Criminal Law (Amendment) Act, 2013 inserted Section 354D into the IPC; the Bharatiya Nyaya Sanhita, 2023 carries that provision forward as Section 78, with the substantive text largely intact. The cyberspace limb of the section — monitoring the use by a woman of the internet, email or any other form of electronic communication — is the basis on which every cyberstalking charge in India rests. This article maps the architecture of the offence, the Information Technology Act content overlay that almost always sits alongside it, and the evidentiary mechanics that govern prosecution.
The statutory text — Section 78 BNS and its IPC ancestor
Section 78 of the Bharatiya Nyaya Sanhita, 2023 reads, in operative substance, that any man who follows a woman and contacts, or attempts to contact, such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman, or monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. The text is in two limbs — a physical-following limb and an electronic-monitoring limb. The two are alternative, not cumulative; either limb, standing alone, makes the offence good. The provision is a direct carry-forward of Section 354D of the Indian Penal Code, 1860, inserted by the Criminal Law (Amendment) Act, 2013 on 3 April 2013 with retrospective effect from 3 February 2013.
Three statutory exceptions sit in the provision's proviso. The conduct does not amount to stalking if the man pursuing it shows that it was pursued for the purpose of preventing or detecting crime and the man accused of it had been entrusted with the responsibility of prevention and detection of crime by the State; that it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or that in the particular circumstances such conduct was reasonable and justified. The exceptions place a defensive burden on the accused; the offence-side ingredients sit on the prosecution.
Punishment is graded. First conviction attracts imprisonment up to three years and a fine. Second or subsequent conviction attracts imprisonment up to five years and a fine. The first offence is, on its face, bailable; the second offence is non-bailable. The first conviction's bailability has been a sustained critique of the provision — domestic-violence commentators have argued that the bail default in a pattern offence under-recognises the cumulative harm of stalking conduct.
The gender asymmetry on the face of the text is express. Section 78 BNS, like Section 354D IPC before it, criminalises stalking by "any man" of "a woman." A male victim of cyberstalking by a female or male perpetrator falls outside Section 78 and must be brought under the general criminal-intimidation provision (Section 351 BNS [Section 506 IPC]), the harassment-by-electronic-communication aspects of the IT Act, or, for the content-side conduct, Sections 67, 67A and 67B of the IT Act, which are gender-neutral. The asymmetry is conscious — the 2013 amendment was directed at violence against women — but is the principal reason cyberstalking jurisprudence has remained patchy where the complainant is male.
The electronic-monitoring limb is the cyberstalking branch and the harder limb to plead. "Monitors the use by a woman of the internet, email or any other form of electronic communication" requires evidence of surveillance over the victim's electronic conduct — typically through covert tracking software, repeated unauthorised account access, persistent location pinging, screenshot harvesting from social media for the purpose of cataloguing the victim's activity, or coordinated multi-handle observation. Repeated unwanted messaging by itself, without the surveillance element, is ordinarily prosecuted under the physical-following limb (read as extending to electronic contact attempts) rather than the monitoring limb. The line between the two limbs is not always clear in the jurisprudence.
The IT Act content overlay — Sections 66E, 67, 67A and 67B
Cyberstalking conduct rarely sits in isolation. It escalates — into the publication of intimate images obtained covertly, the circulation of doctored material, the impersonation of the victim across handles, and, at the extreme end, the procurement and circulation of child sexual material. The Information Technology Act, 2000 supplies the content-side regime for each.
Section 66E of the IT Act, 2000 punishes intentional or knowing capture, publication or transmission of the image of a private area of any person without consent, under circumstances violating that person's privacy. Punishment extends to three years' imprisonment or a fine up to two lakh rupees, or both. The Explanation defines "private area" as the naked or undergarment-clad genitals, pubic area, buttocks or female breast; "transmit" as electronic sending with intent that the image be viewed; and "under circumstances violating privacy" as circumstances in which a person has a reasonable expectation of privacy. The provision is gender-neutral. Section 66E sits alongside the Section 78 BNS stalking charge where the cyberstalker has obtained or circulated an intimate image of the victim.
Section 67 of the IT Act, 2000 is the general obscenity-in-electronic-form provision. It punishes publication or transmission, or causing the publication or transmission, of any material in the electronic form which is lascivious or appeals to the prurient interest, or whose effect is to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter. Punishment on first conviction extends to three years' imprisonment and a fine up to five lakh rupees; on second or subsequent conviction, to five years' imprisonment and a fine up to ten lakh rupees. The substantive obscenity test is borrowed from Section 292 IPC and now lives in Section 294 of the Bharatiya Nyaya Sanhita, 2023; the Supreme Court in Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257 replaced the older Hicklin test with the community-standards test, and that revised test governs Section 67 as well.
Section 67A of the IT Act, 2000 punishes the publication or transmission, in electronic form, of material containing sexually explicit act or conduct. Punishment on first conviction extends to five years' imprisonment and a fine up to ten lakh rupees; on second or subsequent conviction, to seven years' imprisonment and a fine up to ten lakh rupees. Section 67A is the provision under which non-consensual intimate-imagery cases — the so-called revenge-pornography prosecutions — have been principally brought. The State Industrial Investigation Authority court at Bankshall in the matter against the accused Animesh Boxi, decided in 2018 by the Additional District and Sessions Judge, West Bengal, returned what is generally credited as the first Indian conviction for non-consensual intimate-imagery distribution, framed under Sections 354A, 354C, 354D and 509 of the IPC read with Sections 66C, 66E and 67A of the IT Act. The case did not produce a binding precedent in the formal sense — it is a trial-court conviction — but it has been routinely cited in subsequent prosecutions as a doctrinal anchor for the Section 67A track.
Section 67B of the IT Act, 2000 is the dedicated child sexual material provision. It punishes the publication, transmission, browsing, downloading, advertising, promotion, exchange or distribution of material in electronic form depicting children in sexually explicit act or conduct, as well as the cultivation, enticement or induction of children into online sexual relations. Punishment on first conviction extends to five years' imprisonment and a fine up to ten lakh rupees; on second or subsequent conviction, to seven years' imprisonment and a fine up to ten lakh rupees. Section 67B operates alongside the Protection of Children from Sexual Offences Act, 2012 — particularly Section 14 (use of child for pornographic purposes) and Section 15 (storage of pornographic material involving a child) — and the special-statute principle in Sharat Babu Digumarti v Govt of NCT of Delhi, (2017) 2 SCC 18 governs the question of which prevails where the conduct is covered by both regimes.
The intersection of Section 78 BNS and the Section 67/67A/67B track is where most cyberstalking prosecutions actually sit. The stalking charge captures the pattern; the IT Act charges capture the content. Charging both is standard practice and is not duplicative — the gravamen of the two regimes differs.
The electronic-evidence regime — Section 63 BSA and the Arjun Panditrao certificate
Every cyberstalking prosecution stands or falls on electronic evidence. The governing provision is Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which carries forward the substantive text of Section 65B of the Indian Evidence Act, 1872. The provision admits as evidence any information contained in an electronic record produced from a computer that has been in regular use, where the conditions of regularity, reliability and integrity of the producing system are satisfied, supported by a certificate signed by a person occupying a responsible official position in relation to the operation of the relevant device.
The certificate requirement was clarified by the Supreme Court in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, (2020) 7 SCC 1. The Court, overruling Shafhi Mohammad, held that the Section 65B(4) certificate (now Section 63(4) BSA) is mandatory where the original device is not produced in court; the certificate may be issued at any time before the conclusion of the trial, including by the producing party after the matter has been brought on record; and the Court has the power to summon the certificate where the party in possession of the relevant device declines to issue it. In a cyberstalking prosecution, the certificate is the keystone — without it, the SMS records, chat logs, social-media archives and account-access logs are inadmissible.
Section 67C of the IT Act, 2000 supplies the preservation lever against the intermediary. The provision requires intermediaries to preserve and retain such information as the Rules may specify; the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 set a 180-day floor for user-information retention after withdrawal or cancellation. The preservation request — issued by the investigating officer, typically initiated through the FIR — is what allows the prosecution to recover account-access logs, IP records, device fingerprints and message metadata before the retention window closes.
The Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 supply the parallel mechanisms for content takedown and access blocking, where the cyberstalking conduct involves the persistent re-publication of intimate imagery or harassing material.
FIR, investigation and jurisdiction — BNSS Sections 173, 175 and 197
Section 78 BNS is a cognizable offence. The FIR is governed by Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [Section 154 CrPC]. The Constitution Bench in Lalita Kumari v Govt of Uttar Pradesh, (2014) 2 SCC 1 settled the law that registration is mandatory on disclosure of a cognizable offence; preliminary inquiry is permissible only in narrow categories, none of which covers stalking or cyberstalking. The remedies for refusal — escalation under Section 173(4) BNSS, and the Magistrate's order to investigate under Section 175 BNSS [Section 156(3) CrPC] — are well-trodden in cyberstalking practice because the offence is frequently routed first to a local police station that lacks the technical capacity to handle the digital trail.
Investigation under the Bharatiya Nagarik Suraksha Sanhita is conducted under Sections 175 onwards, with the Section 197 statement of the witness now replacing the Section 161 CrPC framework. The investigating officer's powers extend to issuance of summons to the intermediary, requisitioning preserved records under Section 67C IT Act, and obtaining the Section 63(4) BSA certificate at the appropriate stage. Where the offence is the second under Section 78 BNS, it is non-bailable and the powers of arrest and remand under the BNSS attach with the usual safeguards.
Jurisdiction is a recurrent operational difficulty. Cyberstalking is by definition multi-locational — the perpetrator and the victim may sit in different states, the platform's servers in a third jurisdiction, and the intermediary registered abroad. The settled rule that the offence can be tried at any place where any of its ingredients took place — codified in Section 197 of the Bharatiya Nagarik Suraksha Sanhita and traceable to the corresponding CrPC provision — gives the victim a measure of choice over the trial forum. The High Courts have, in a steady line, taken a liberal view: the offence is triable where the message was received, where it was sent, or where any of its effects were felt. The Orissa High Court's decision in Kalandi Charan Lenka v State of Odisha (Orissa HC, 2017) — refusing to quash the FIR in a cyberstalking matter on the ground of forum and emphasising the gravity of the conduct — has been cited in subsequent High Court rulings for the proposition that procedural objections must not be allowed to defeat a substantive cyberstalking prosecution.
The constitutional backdrop — Article 21 and the Section 66A line
The Supreme Court's decision in Shreya Singhal v Union of India, (2015) 5 SCC 1 struck down Section 66A of the IT Act, 2000 for void-for-vagueness on the standards of Articles 19 and 21 of the Constitution of India. The judgment is doctrinally important to cyberstalking practice for two reasons. First, it expressly distinguished Section 66 and, by extension, the cognate offence provisions in the IT Act — Sections 66C, 66D, 66E, 67, 67A and 67B — on the ground that their ingredients are defined with sufficient specificity to survive the same scrutiny. The Section 66A line cannot be used to disturb the IT Act content overlay that sits behind a Section 78 BNS stalking charge. Second, the judgment grounded the privacy and free-speech analysis in Article 19(2) and Article 21 — the constitutional foundation that the Court later expanded in K S Puttaswamy v Union of India, (2017) 10 SCC 1, where the nine-judge bench held that the right to privacy is a fundamental right traceable to Article 21. The privacy framework Puttaswamy establishes is the constitutional source on which the substantive cyberstalking offence — particularly the electronic-monitoring limb of Section 78 BNS — actually rests.
The Supreme Court in Sharat Babu Digumarti v Govt of NCT of Delhi, (2017) 2 SCC 18 held that where the Information Technology Act and the Indian Penal Code apply to the same conduct, the IT Act being the special and later enactment must prevail to the extent of inconsistency. The Court applied that principle to Section 67 over Section 292 IPC. The principle continues to govern the framing of charges where a cyberstalking prosecution includes IT Act counts alongside BNS counts. In practice, the prosecution charges both — the BNS count for the stalking pattern, the IT Act counts for the content and the medium — and the special-statute question is taken up at the framing stage rather than the FIR stage.
Where the doctrine sits today and what remains contested
The position in 2026 can be stated in four points without straining the law.
One — Section 78 BNS is the substantive stalking offence, and its electronic-monitoring limb is the basis on which every cyberstalking prosecution in India proceeds. The provision's gender asymmetry — woman victim, man accused — is express on the statutory text, traceable to the 2013 amendment's roots in violence against women, and is the principal reason cyberstalking jurisprudence has remained thinner where the complainant is male. The bailability of the first offence has been criticised but has not been disturbed by the BNS recodification.
Two — the Information Technology Act overlay (Sections 66E, 67, 67A and 67B) is what carries the prosecution where the cyberstalking has escalated into the publication of intimate or sexually explicit material. The Animesh Boxi trial-court conviction in West Bengal is the doctrinal anchor for the Section 67A non-consensual intimate-imagery track; the Section 67B child-sexual-material track operates alongside the POCSO Act, 2012, with the special-statute analysis from Sharat Babu Digumarti governing the conflict of laws.
Three — the electronic-evidence regime under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, read with the Arjun Panditrao Khotkar certificate requirement, is settled. The Section 67C IT Act preservation lever and the 2009 procedural rules supply the operational tools. The gap that remains is in the practical capacity of district-level cyber units to operate the toolkit in real time.
Four — three doctrinal questions remain genuinely open. First, the application of Section 78 BNS to coordinated multi-handle stalking — where the conduct is distributed across socks, bots and proxy accounts in a way that makes the "any man" identification difficult — has not been authoritatively settled. Second, the position of intermediaries under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 when they decline takedown of cyberstalking content remains an area of active litigation, particularly in the wake of the Supreme Court's safe-harbour reasoning in Shreya Singhal on Section 79 of the IT Act. Third, the cross-border dimension — where the stalker, the platform or both sit outside Indian jurisdiction — remains operationally difficult, despite Section 75 of the IT Act extending extraterritorial reach to offences committed outside India that involve a computer, computer system or computer network located in India.
For the prosecution that has anchored the FIR under Section 173 of the BNSS at the right forum, framed Section 78 BNS with the cognate IT Act content counts, preserved the digital trail under Section 67C in the first preservation window, and secured the Section 63(4) BSA certificate before trial, the legal architecture is genuinely effective. For the prosecution that has missed any of those steps, the case degrades quickly. The doctrine, in either case, runs through the same statutes — the Bharatiya Nyaya Sanhita, 2023 as the substantive offence framework; the Information Technology Act, 2000 as the medium-specific overlay; the Bharatiya Sakshya Adhiniyam, 2023 as the evidentiary code; and the Bharatiya Nagarik Suraksha Sanhita, 2023 as the procedural code that ties the rest together.