Cybercrime

This article is written by M.Manaswini Reddy of KVRR law college, Osmania University. It comprehensively explains Section 354D of IPC, that is, stalking. The article enlightens the Section as a legal provision for the protection of women.

This article has been published by Sneha Mahawar.

Introduction

Crime is defined as an act or omission which is violative of law and thereby affects society at large. The Indian Penal Code, 1860 provides various provisions for the protection of women against crimes. The Code essentially looks at Actus Reus and Mens Rea to punish crime. Stalking generally means following someone either online or physically in the absence of their consent with a motive to establish personal interaction with such a person even after they have dissented to it. Stalking is a punishable offence under the Indian Penal Code, although the Code provides for punishment for stalking only against women. Stalking under the Indian Penal Code is recognised as a cognizable, bailable and non-compoundable offence. Stalking has made a serious impact on the physical and mental health of young women. Most victims face stress and social anxiety as a result of the trauma of being stalked along with having to move locations, change jobs, having emergency contacts and undisclosed weapons. This article gives an overview of the Section 354D and each of its necessary components.

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Background

A committee was formed to bring changes to the criminal justice system. Formed on December 23rd 2013, the Committee consisted of Justice J.S Verma as chairman, Justice Leila Seth and senior Advocate Gopal Subramaniam. The changes were aimed at making the criminal justice system faster in terms of trials and enhancing punishments against offences of sexual assault of extreme nature concerning women. This was an action taken consequent to the infamous Delhi gang-rape case which highlighted the increasing number of crimes against women and outraging their modesty. Stalking was introduced under Section 354D as an offence by the committee under the Criminal Law  (Amendment) Act of 2013 and a report was submitted on January 23rd 2013. 

Section 354D IPC

Any man who follows a woman, contacts her or attempts to contact her for personal interaction time and again even after the woman has indicated clearly that she is not interested in making an acquaintance, amounts to stalking as per Section 354D. This Section also covers online stalking that is to say monitoring her use of the internet, email or other forms of electronic communications.

Exceptions to stalking

  • If the woman is pursued by the man as a part of his responsibility to the state, to detect a crime or prevent one from happening;
  • To abide by any condition or law given by a person authorised by law; 
  • Other situations that might make his conduct reasonably justifiable.

The punishment prescribed by the Section for stalking is simple or grievous imprisonment for a term of three years and fine upon first conviction and on a second conviction, imprisonment for a term of five years and fine.

Section 354D IPC interpreted with other provisions

  • 354A of the Indian Penal Code discusses making sexual advances towards a woman and physical contact that is unwelcome or explicit, demands or requests for sexual favours shows, pornography against the will of the woman and makes sexually coloured remarks. All these have been categorised as sexual harassment and before Section 354D this Section was used to cover stalking as well since most cases of sexual harassment begin with stalking. 

For example eve-teasing, a girl walking home by making sexually coloured lewd remarks or demanding and requesting sexual favours, in such cases Section 354A will be read with Section 354D(1)(i) of IPC.

  • 354B– This Section speaks about the use of criminal force or assault with the intention to disrobe a woman without her will. The Section punishes abetment of such offence.

It is pertinent to note that disrobing a woman means to take the woman’s clothes off against her will or to compel her to take her clothes off against her will.This too is a form of eve-teasing and stalking a woman with an intention to disrobe her against her will. It attracts both outraging the modesty of a woman as well as Section 354D(1)(i). There have been instances where a man stalks a woman until cornered, uses criminal force or assaults her, forcing her to disrobe or tries to disrobe her himself against her will. 

  • 354C– Voyeurism is elucidated under this Section, which simply means attaining sexual pleasure by watching a person when they are naked or engaged in sexual activity. The Indian Penal Code punishes any man who watches or captures images of a woman by invading her privacy, essentially when she is naked which means that her genitals, posterior and breast are exposed or  when she is engaged in any private act that she  would not ordinarily do in public. The Section makes it clear that such an act is punishable if done without the consent of the woman by using the line “she would not expect to be observed in the time of her privacy”.The Section punishes circulating such images of the woman.

Voyeurism too is most often read with Section 354(1)(i) since it involves a man following a woman to watch or capture her images, invading her privacy.

  • 509- Insult the modesty of a woman by using words, gestures or actions. The main ingredients of the Section that the offender must utter words, make a sound or gesture or exhibit any object and it must be done with the intention that it be heard or be seen or invade the privacy of the woman. Section 509 is often read with 354D(1)(i) since there have been incidents of eve-teasing with an intention to insult the modesty of a woman while stalking her.

354D IPC and Cyber Stalking

Section 354D(1)(ii) mentions that monitoring the use of the internet or email or any other electronic communications by a man even after she has expressed her disinterest and displeasure to interact amounts to online stalking.

Trying to contact a woman and make personal acquaintances even after she has shown her disinterest, defaming, slander and libel on an online platform also are considered cyberstalking.  For example: sending friend requests to a girl’s account even after she rejected it from multiple accounts.

Cyberstalking is usually dealt with under Sections 66E, 67, 67A and 67B of the Information Technology Act of 2000 while being read with 354D(1)(ii). 

  • Section 66E of the IT Act: while Section 354C read with 354D91)(i) is voyeurism that happens with physical stalking, 66E talks about voyeurism committed through the internet which is most commonly a result of cyberstalking. The Section punishes capturing, publishing and violating the privacy of an individual.
  • Section 67 of the IT Act: talks about punishment prescribed for transmitting obscene material in electronic form, this Section is read with Section 292 of IPC and 354D(1)(i) in instances of stalking and sending obscene, vulgar material.
  • Section 67A  and 67B of IT Act: while 67A deals with an adult woman facing stalking and being sent sexually explicit material, publishing and transmitting explicit material, 67B deals with children below the age of 18 years in the above same situation. Both these Sections cover the ambit of 354D(1)(i) to be read with.

How to identify and file a complaint against stalking

Physical Stalking

Based on these provisions, one can identify what way they are being stalked under Section 354D(1)(i). It has to be noted that certain actions of stalking also result in harassment of a sexually-explicit nature, which must be determined under Sections 354A, 354B, 354C and 509. It is important to understand and determine whether the actions happening to you are as per the Section, that is:

  • If you are being followed or contacted by a man 
  • The man shows intentions to build personal interaction 
  • You have indicated disinterest
  • Recognise if any other actions are happening along with stalking. For example, sexual harassment, voyeurism (taking pictures without consent), assault, trying to outrage modesty by words actions gestures and trying to disrobe forcefully.

It has to be noted that certain actions of stalking also result in harassment of a sexually-explicit nature, which must be determined under Sections 354A,354B,354C and 509.

  • File an FIR/complaint against it at the nearest police station. 
  • In case you are not in your domiciled state, a zero FIR may be filed. A zero FIR allows you to register a complaint irrespective of where the offence has been committed and later on transfer such complaint to the police station of that jurisdiction where the offence has been committed.
  • Establishing whether the offence is cognizable or non-cognizable helps understand whether approval of court or warrant would be required to arrest the offender. 
  • Since 354D is a cognizable offence, police can arrest the offender without the approval of the court followed by which investigation begins. 

Cyber Stalking

Cyberstalking is dealt with 354D(1)(ii): identify and be sure that you are facing cyberstalking through the essentials mentioned in the Section. 

  • If you are being followed or contacted by a man 
  • The man shows intentions to build personal interaction 
  • You have indicated disinterest 
  • Monitors the use of your Internet
  • Recognise if any other actions are happening along with stalking. For example, sexual harassment, voyeurism (taking/publishing pictures without consent), trying to outrage modesty by words or gestures, showing pornography or sending explicit content.
  • A complaint can be filed to cyber cells dealing with internet-related criminal activity that is cybercrime. 
  • The complaint can be either made online or via an FIR. 
  • To file a complaint anonymously there is provision for an online grievance cell with the National Commission For Women who then forward the case to the local police. 
  • Social Media apps and sites provide the option to report any activity that is considered explicit information that might be offensive. This option helps remove the offensive information within 36 hours as per the Intermediary Guidelines Rules, 2011.

Complaints filed for either kind of stalking, if refused the victim can seek legal assistance directly for the judicial magistrate. The complaint filed must also keep the victim’s identity confidential.

Prevention of Cyber Stalking

Here are a few suggestions to prevent cyberstalking:

  • It is advised to refrain from disclosing personal details such as phone numbers, Emails or house addresses on your social media.
  • Having different accounts for personal and professional online presence minimises a lot of risks.
  • Making sure to have the GPS location of your devices off as well as not sharing live locations whenever there isn’t a need, would ensure safety.
  • Checking privacy settings and not responding to unknown calls or messages is advised. 
  • Protect your IP address with a virtual private network, installing anti-virus software into your devices also helps.

Case laws concerning Section 354D IPC

One of the very most thought-provoking cases which invoked provision 354D was: Santosh Kumar Singh v. State Through CBI (2010) where Priyadarshini Mattoo, a 25-year-old law student was stalked, raped and murdered at her residence in New Delhi. The third-year law student had been stalked multiple times and had been harassed by Mr Santosh Singh, son of a former IPS officer and was her senior at the campus law centre in Delhi. Several complaints were filed against him on several instances of stalking her, harassing, threatening her and making indecent requests. An FIR under Section 354 was filed in Maurice Nagar Police Station the perpetrator was arrested and released on a bail bond. A complaint was filed with the Dean of the university who asked the accused to not do such activities, the victim was also assigned personal security personnel due to the severity of the situation. 

On January 23rd 1996 when the victim was alone at home on the account of coming to a legal compromise, he assaulted her. He then proceeded to hit her 14 times with his helmet, raped her and strangulated her with a wire to death. The case was taken up by the trial court and the accused was given the benefit of doubt due to the fabrication of evidence by CBI, evidence was not collected as per procedures of law.

When the matter was taken up at the High Court the accused was awarded the death penalty which was on a later date December 10 granted to life imprisonment by the Supreme Court.

In the case of Shri Deu Baju Bodake v. The State of Maharashtra (2016) Bombay High Court dealt with suicide by a woman who ascertained the reason for her suicide was consistent harassment and stalking by the perpetrator. Not only did the accused harass and stalk her while she was at work he also demanded to get married to her despite her disinterest and dissent. The High Court held it imperative to record Section 354D along with abetment to suicide to punish the accused.

Arvind Kumar Gupta v. State 2018, a man followed her to her office and stood next to where she stayed, by the time she returned from work. This continued for a year until the woman’s brother confronted the man who said that the girl reminded him of someone and was intending to marry her. The woman filed an FIR and in the trial, the man could not plead his defence. The prosecution was able to prove that he followed her constantly even after she was not interested. The prosecution was able to prove that he followed her constantly even after she was not interested. It was decided by the court that the man was guilty of stalking the woman as per Section 354D(1)(i), he was without reasonable doubt wanting to interact with her even after she expressed her dissent. The court awarded him with simple imprisonment and a fine.

Analysis of Section 354D IPC

Section 354D although discusses stalking to a greater extent, it does not provide for stalking that happens not just with women only. Stalking is such a crime that may happen to anyone at any point in time and since the invention of technology people of all genders can be victims of the communication offence. This calls for the provision to be more gender-inclusive. 

Stalking under Section 354D of the Indian Penal Code is a bailable offence in the first instance which means that the accused is free to go on bail. Such bail is not required to be approved by the court; neither does the accused need to present himself before the court. While in reality there is the utmost need to make it non-bailable since it is often misused by men. Stalking not only is a crime on its own but is also the reason for certain other crimes, most commonly sexual harassment. The above cases show that stalking can lead to several serious crimes against women including rape. 

The woman is harassed, called out by sexually coloured remarks, teased, gets asked sexual favours and demands. Since the generation of the internet is fast and affordable stalking that leads to sexual harassment is quite prevalent in the online mode. All such actions have a serious effect on a woman’s self-esteem, confidence to be independent and mental health. Most crimes against women start with stalking and progress towards serious offences especially out of rage that the victim filed a case. The stalker, despite being arrested, is allowed to roam free on bail. 

Criticism of Section 354D IPC

While the National Crime Report Bureau estimated stalking as a crime to have grown exponentially in 2017, with just 26% of conviction rate one can’t help but analyse are there enough laws to prevent stalking. The Indian Penal Code of 1860 along with the Information and Technology Act of 2000 provides punishment for stalking although there has been no discussion about prevention. This indicates that the criminal justice system needs to take a look at provisions related to women in a preventive way rather than a protective way. That is to say, nip the evil in the bud. 

There is a  need to strengthen the acts that amount to stalking as a crime as it only talks about following a woman and trying to establish contact with her even when she is disinterested. It does not mention anything about acts that might lead to stalking or are a mode of stalking such as, staring at a person, spreading false rumours, making calls or lurking around a person’s residence

Conclusion

The Indian Penal Code has played a pivotal role in making a framework for provisions for women. The code attempts to cover all crimes against women of all ages, right from the Prenatal stage covering childhood, adolescence, reproductive age and offences against elderly women, for example, there have been several cases of abuse of widows.

Most cases of stalking go unnoticed because women do not want to risk the freedom of being able to move around and many eyewitnesses ignore it, this has rendered the offence be not taken seriously at all even if there is a provision to punish it. With awareness and education on how to react in situations of being stalked or invoking Section 354D to report the crime, file an FIR and approach the right authorities, a change can be brought.

References

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