This article is written by Raj Chourasia, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.

Introduction 

In the world, many people can become a victim of stalking daily. As per the National Crime Records Bureau (NCRB), stalking cases have been a massive rise in India. Every year approximately 7190 plus cases are recorded in India. While in Maharashtra the highest number of stalking cases record every year comes to over 1587 plus cases. In Delhi every year 835 plus cases out of this only 26.6 percent case are convictional rate. There are many crimes against women, among which stalking is one of the more prominent ones and is constantly on the rise. While in India there are several debates happening with respect to how stalking is an offence and how to handle stalking as a crime. Looking at the current situation and circumstance in India, it is important to establish the need to make stalking a non-bailable offence. Every country has our law and punishment on stalking. 

In this article, I will be discussing why we need stalking as a non-bailable offence in the first instance, what is stalking according to IPC, is stalking a bailable or non-bailable offence, how and when was the first instance of stalking made bailable, what is the need for making the first instance of stalking to be non-bailable offence and how are women stalked in the modern era, how serious of a crime is stalking for it to be non-bailable, does stalking lead to other serious crimes and what is the jurisprudence supporting the same. 

Let us first understand what falls within the ambit of stalking.

What do you mean by stalking?

The word Stalk means to pursue or approach someone stealthily without the knowledge of the person being followed. Stalking is a crime of illegally following and watching someone over a period of time. Stalking is an act following a person closely without being seen or heard. 

In Indian Penal Code Section 354 D defines the term Stalking in IPC where it says that when someone follows a woman or attempts to contact such woman for personal interaction repeatedly without the interest of such woman and observe or monitor the use of such woman on the internet, email or any other form of electronic communication can commit the offence of stalking. 

Is stalking a bailable or non-bailable offence?

This is a debatable question in India. As per the National Crime Records Bureau (NCRB), eighty percent of the accused get bail in stalking by the magistrate before the charge sheet is filed. This Bail grants the accused the right to walk freely which in turn impairs the safety of women in the society. In IPC, Section 354 D also defines the punishment for stalking as whoever is convicted at the first instance for stalking, the term description may include Imprisonment up to three years, and with a fine. It will be considered a  Cognizable and Bailable offence triable by any Magistrate and for the second or subsequent conviction the term description for a term which may be imprisonment up to five years, and with a fine for second and subsequent conviction is a Cognizable and  Non-Bailable offence and triable by any Magistrate and this offence is not listed under section 320 Cr.P.C. 

How and when was the first instance of stalking made bailable?

Varnika Kundu, the 29-year-old daughter of an IAS officer, who was allegedly stalked in August by the son of an influential politician in Chandigarh. Before 2012, laws in India had no provision for punitive punishment in case of stalking. It was only after the brutal rape and murder case of December 16, 2012 that stalking was made a “Bailable offence”. Under the Criminal Law (Amendment) Act, 2013 stalking was made a punishable offence under Section 354D of the IPC, with imprisonment of up to three years for first-time offenders. The Justice Verma Committee, set up in the aftermath of the gangrape and murder case of December 16, 2012, had recommended that stalking be introduced as a non-bailable offence with one to three years in jail as punishment. It was accepted by UPA Government and seconded by a parliamentary Standing Committee and Bill introduced in Parliament subsequently. The first offence of stalking was made bailable while any subsequent offence was made non bailable with enhanced punishment of up to five years in jail. 

What is the need for making the first instance of stalking to be a non-bailable offence?

In 2013 Haryana BJP Chief’s son Vikas Barala was alleged for stalking a woman and Barala walked out on bail from the police station on the same day. Today the first offence of stalking is a Bailable offence that the accused need not to go and produce before the court for seeking bail but bail will be granted at the police station itself. A non-bailable offence means the court will have discretion to grant an accused bail. The UPA government wanted every offence of stalking be considered as a Non-Bailable offence with 1 to 3-year jail as a punishment. This was accepted by the UPA government and also seconded by Parliamentary Standing Committee. In 2012 Criminal Law Amendment Ordinance was introduced and put in force that bill was introduced by the Home Minister Sushil Kumar Shinde, member of opposition like the Samajwadi Party, Rashtriya Janata Dal and JD(U), an all-party meeting voice saying that it was misused against men. After the consultation with all political parties the provision regarding stalking. In a bill introduced in parliament subsequently, the first offence of stalking was made bailable and with enhancing punishment up to three years and the second and subsequent offence was made non-bailable offence with enhanced punishment up to five years in jail. 

• How are women stalked in the modern era?

As Sec 354D of Indian Penal Code defines Stalking and its punishment. In this section main ingredients are that any man who follows a woman and attempts to contact women repeatedly for personal interaction despite a clear indication of un-interest by women or observe or follow or monitor with the use of the internet, social media, email or any other type of electronic communication is considered as stalking. Just as a man stalks women, women too stalk men in the modern era. Women can stalk and follow a man and attempt to contact men repeatedly for personal interaction despite a clear indication of un-interest by men or observe or follow or monitor with the use of the internet, social media, email or any other type of electronic communication. 

• How serious of a crime is stalking for it to be non-bailable in the first instance

Stalking in Indian is a bailable offence and triable by any magistrate. Accused can get bail from the police station and need not be produced before the magistrate. Most of the accused can walk free from the police station after a bail is granted. Whoever commits Stalking for the first instance in India is a bailable offence and second and subsequent conviction is a Non-bailable offence as per section 354D of Indian Penal Code. In non-bailable offences, courts have discretion to grant bail to accused. For the first instance, the crime of stalking if made non-bailable there is a chance that it gets misused against men. 

• Does stalking lead to other serious crimes

Stalking leads to other serious crimes like Rape, Murder (Honour Killing), Robbery, Trespassing, Grievous Hurt, Sexual Harassment, Assault, Voyeurism, to name a few. Many times we have seen instances of people advancing rape and murder threats once they start pursuing a woman. If not reported early, these advances that start from stalking can prove extremely dangerous to a woman putting her life at stake.  

• What is the jurisprudence supporting the same?

Jurisprudence is the philosophy of law which helps one understand the development of the system of law over the years through judicial pronouncements. Let us understand the jurisprudence of stalking with the help of some cases.

Priya Mattoo Case

Mr Santosh Singh was the son of a former IPS officer. Mr Santosh Singh stalked a young law student, raped and murdered her in her own home at Vasant Kunj Delhi. At the time of this offence, Mattoo was alone at home on January 23, 1996, when she was raped by Santosh and then killed. Multiple complaints were filed against the culprit in Vasant Kunj and RK Puram police station.  Afterwards, the case was transferred to CBI in 1996. Hon’ble High Court awarded him the death penalty which was later granted life imprisonment by Supreme Court in December 2010. 

Shri Deu Baju Bodake v/s The State of Maharashtra

In this case of suicide by a woman who claimed that the reason for suicide was the constant harassment and stalking done by the accused. The accused would always stalk her at her during work and insist upon getting married to her. The Hon’ble Bombay High Court held that the charge under section 354D ought to have been recorded in addition to the charge for abetment to suicide. 

Conclusion

Stalking as a crime has severe penal consequences as has already been elaborated in my article, especially if a person is convicted more than once. At first instance, the crime will be considered a bailable offence and if the same person commits the same offence a second time, it will be considered a non-bailable offence which will follow an imprisonment of up to 3 years along with fine as may be decided by the Magistrate. With technological advancements in society today, this crime has increased manifold especially due to easy access to an individual’s personal information via social media and other platforms. In my opinion, one must be extremely careful and vigilant when using social media platforms or while browsing the internet so as to keep away from individuals who thrive on spying others. 

References

• https://devgan.in/ipc/section/354D/
• https://economictimes.indiatimes.com/news/politics-and-nation/first-stalking-offence-made-bailable-in-criminal-law-amendment-bill-2012/articleshow/59962032.cms
• https://blog.ipleaders.in/stalking/
• https://www.soolegal.com/roar/introduction-of-stalking-into-indian-legal-regime
• https://indianexpress.com/article/india/stalking-indian-laws-bailable-offence-crimes-4992783/#:~:text=cases%20of%20stalking%20.-,It%20was%20only%20after%20the%20brutal%20rape%20and%20murder%20case,years%20for%20first%2Dtime%20offenders

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