Stalking under the Indian Penal Code | Section 354D with Case Laws

INTRODUCTION

Sometimes not paying attention to the casual approach or little things results in very serious unwanted situations. In the other words, harm or danger is not only caused by the major negligence, but it may also be caused by little negligence, small crime, a small mistake, or less harmful actions. In our day to day life, we generally hear about accidents or any major wrong or crime and often we read the newspaper regarding various mishappening but the most observing thing which everyone must notice is that in some cases, the vital and major role behind the case is of the casual or small thing. Let’s understand the concept with an Example – sometimes people die due to malaria which is caused through the bite of mosquitoes that is a smaller insect, another example is that we often hear about a ship sinking due to a small hole in the ship and in such accident a small hole plays a vital role. Likewise, only heinous or serious crime is not only the reason behind the bad conditions contained with women, but there are also some crimes which are not so serious or heinous nevertheless it still disturbs and harms the women. And one of such crime is “stalking”, which is discussed in this article. Also, the concept, meaning, provisions, and types of the stalking as per the Indian Penal code,1860 are also discussed here. Even the Information technology act, 2000 contains the provision in connection with cyberstalking which is also a kind of stalking.

MEANING OF STALKING

The action or any movement which draws an indication of following or tracking any person is known as Stalking. In the general sense, Stalking simply means to follow any person or try to make any contact privately with that person, making them feel uncomfortable by any medium which tends to frighten that person. There are many ways when stalking is supposed to be committed such as abusive messages, tracking on the road or social media, any non-stop calls, or any other things which harass any person. The crime of stalking is generally conducted against women ultimately resulting in harm to them.

Indian Penal code,1860 provides the definition and protection against the crime of stalking under section 354D. According to the code, the crime stalking refers to the conduct in which any man tries to follow or attempt to create private contact with any woman. The act of following or tracking the woman is repeated by the man and woman shows a clear signal of disinterest in the conduct of such a man. It may be physical or online, as mentioned under the provision of code itself.

In the leading case of Shri Deu Baju Bodake vs The State of Maharashtra, Bombay High Court, 2016, the court investigated the case of a woman who committed suicide and the reason stated behind the suicide was continuous stalking and harassment by the accused.

The provision of the Indian Penal code,1860 clause comprises that any man who conducts any act as per section 354D shall be punished under the same section. It also provides protection to the women and prevents the crime of stalking against women and contributes to eradicating the uncomforted level as well as the opportunity of the major or heinous crime.

INGREDIENTS OF STALKING

 There are various essentials that are necessary to be present in the conduct of the crime of stalking and without these essentials, the crime of stalking shall not be considered as an offence under this section.

Physical stalking

The main essentials of physical stalking are as follows-

Stalking committed by man- stalking must be committed by any man as per section 354D of the code. For example, any man follows or tries to contact any woman against the interest of that woman.

Follows or attempts to contact any woman-  There must be any action in the form of following or trial of creating a contact by the man such as following any woman in road, shop, workplace, public place, etc.

Purpose of the following must be to create personal interaction- The sole purpose behind the conduct by the accused which included the following or trial of creating contact to the woman must be private or for the personal interaction. There must be personal interaction such as any man follows a woman with sexual intent.

The conduct must contain repeatedness-  The conduct of the accused must be in repetition or in the continuance. An accused must follow or tries to contact the woman repeatedly.

In the case of State vs Jarif Ahmad, 2018, the court held that the conduct of following the woman or creating personal contact to the woman must be repeatedly done by the accused, and merely following once shall not be considered the crime of stalking under section 354D.

In the case of State vs Harkesh @ Rinku s/o Shri Om Prakash, 2013, the court laid down the section 354D of IPC and section 11 of POSCO regarding the essential of stalking that is repeatedly following of woman or tries to create personal contact.

Absence of interest on the part of a woman- An accused shall only be punished under section 354D of the code when it is proved that the woman clearly indicated her disinterest upon the conduct involving the following or trying of creating the personal contact by such accused. There must be a clear indication that such a woman is totally not interested in the conduct of the accused.

In the case of State vs Jarif Ahmad, 2018, the court laid down that there must be disinterest on the part of the woman in the conduct of the accused.

In the case of State vs Akbar Malik, 2017, In this case, the court elaborated the meaning of ‘interaction and disinterest’ in respect of stalking and provided that for the above term, the wide amplitude is required and also it is possible that interaction done by the accused may be non-verbal aa well.

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Electronic or Online Stalking :

The main essentials of the online stalking are as follows-

Conduct of stalking must be conducted by any man- The crime of stalking conducted online must be held by any man.

Keep the track of any use of means belonging to the woman- The crime of online stalking must include that an accused keeps the track of anything which belongs to the woman. This means that the accused looks out for anything which is used by a woman in the electronic form.

Monitoring must be conducted through the medium of the internet and any form of electronic communication- The online stalking requires to have the main essential that is an online platform of communication such as email, Facebook, Instagram, Twitter, etc. An accused must have followed or tried to created personal contact on the online platform or any social media with the woman.

For example- Looking out pics of any woman tracking the comment of any woman, viewing profile, follow any woman through internet mode on social media or any other form of an online platform, hacks the account of any woman, etc.

PUNISHMENT

The section 354D of the Indian Penal code,1860 provides the punishment against stalking. It comprises the punishment as whoever commits the crime of stalking shall be punished with imprisonment of either description for a term which may extend to three years and shall have to pay the fine liability on the primary conviction and in the secondary conviction, an accused shall be punished with the imprisonment of either description for a term which may extend to five years and the fine liability also.

In some cases, stalking leads to provide a pillar or base for the grave or heinous crime such as rape, murder, etc. In the Priya Mattoo case, the court penalized the accused with the death penalty. The case consisted of the victim who was a law student and the accused was the son of a former IPS officer who firstly stalked the victim, then harassed her, and lastly raped her.

The chapter IX of the Information technology act, 2000 also provides the provisions regarding the offence of cyberstalking or online stalking. It includes section 66D of the act which regards with impersonation as an offence that is any person creates a fake account in order to harm any person shall be punished with the imprisonment of three years and fine liability, section 66B also provides the offence of cyberstalking and its punishment. Any person issues a sexually explicit article or photo on electronic or online platforms, then he shall be liable for the punishment of five years and fine liability as well.

In the case of Kalandi Charan Lenka vs State of Orissa, 2017, the crime branch contained cyber call scrutinizes the case and the high court of Orissa held the accused guilty of the offence under section 354D of the Indian Penal code,1860. Wherein the accused has given the proposal to the victim but got rejected so he sent salacious or pornographic letters and emails and tried to degrade her image, also he made a fraud account on Facebook in order to harm her.

EXCEPTIONS

Any conducts shall be considered as the crime of stalking if the action or act done by any person consists of the following and such person verifies the situation in the following order-

If any person committing stalking has been given the responsibility of precluding and finding of crime wherein such person is accountable and answerable to the state and thereby such person doing stalking for providing a shield to the woman and obviating any kinds of crime, such commission shall not be considered as a crime under this section, however, he has to prove this.

Any person committing the offence of stalking or found of doing so, has done as per any law or any of the provisions, clause needed or conditions provided under any law. Therefore, he shall not be considered as an accused under this section but for this, he has to prove that his conduct is under the supervision of any law.

Any person conducts stalking under this section of the Indian Penal code, however, such conduct incorporates very just and logical reasons. Such person shall have to prove that his conduct was very sensible and justifiable for such particular situations in order to prevent himself from being guilty under this section.

A very interesting and suitable example for the better understanding of the exceptions of the crime stalking is the role of Shahrukh Khan in the Bollywood movie ‘Main Hoon Na’. the character Ram was played by the actor in which he was an army man and was assigned for the stalking so as to protect the daughter of his senior officer.

CONCLUSION

The amendment of 2013 in the Indian Penal code,1860 incorporated the provision of section 354D for preventing and obviating the wrong and stopping the crime against women. The section defines the term stalking, explains about the crime of stalking under the Indian Penal code, and provides punishment against the crime of stalking. In order to protect the women against the crime of stalking which disturbs the harmony of women even stalking creates a source of other various heinous crimes such as rape, murder, etc.

Also Read: Difference between Common Intention (Sec. 34) And Common Object (Sec. 149) under IPC

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