Sec354D

Sec354D

Article by:-mahima nayyar

This section brings into light the act of staking .Generally Stalking is unwanted and/or repeated surveillance by an individual or group toward another person.] Stalking behaviors are interrelated to harassment and intimidation and may include following the victim in person or monitoring them. The term stalking is used with some differing definitions in psychiatry and psychology, as well as in some legal jurisdictions as a term for a criminal offense. 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;
EXCEPTION TO THIS SECTION
It would not form an offence under this if it involve certain fact given below -;
• It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
• it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or in the particular circumstances such conduct was reasonable and justified.
Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
Now this section plays a very important aspect it involve stalking over social media as many times there are instances that a girl is being stocked as her account is hacked or stalked continuously which according to anyone is normal but it led to victim stress or mental trauma which is difficult at explain can be cover under this section .When we says that technology has given a great boost to our life but it itself come with born problem with it as social media like facbook, instgram or many other platform has become
The Court observing the Section 354 IPC and Supreme Court decisions in Vidyadharan v. State of Kerala, and Rupan Deol Bajaj v. Kanwar Pal Singh Gill, observed that intention must be proved for this offence but intention is not the sole criteria for conviction as the offence can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. On the basis of the facts and the rulings of the Supreme Court, the Court found that there is no use of assault or criminal force on the informant intending to outrage or knowing that it will likely outrage her modesty therefore the informant may complain for physical harassmenT
Under Criminal Law, ordinarily, the burden of proof is on the prosecution to prove beyond a reasonable doubt, that the accused had committed an offence i.e. it is for the State to prove that the accused was guilty, and not for the accused to prove that he is innocent. In some special circumstances, however, like Section 498A and 354D, the burden of proof is slightly shifted.
Section 354D is peculiar in that, once the State has proved that the advances made by a man towards a woman were with an intent to foster personal interaction repeatedly despite a clear indication of disinterest by the woman, the burden shifts on the accused to prove that conduct was reasonable and justified. I could not locate any particular Supreme Court judgment. But remember, even if the burden of proof to prove innocence shifts on accused, that is only after the prosecution has reasonably satisfied that the conduct, by and in itself, amounted to stalking in the first place.
The Information Technology Act, 2000 was the next step to check offences in the cyberspace. Chapter IX of the Act deals with the offences including identity theft, impersonation, sending obscene material etc. However, cyber stalking as a standalone concept was not directly addressed under this Act. What the IT Act sought to do was to address the consequences of online stalking. For example, in a scenario, where multiple accounts are created to stalk a person online, the IT Act tackles this provision and terms it to be an offence of Impersonation under Section 66D. Here a person is assuming a fake identity with an intention to deceive another or cheats by using a computer or a communication device.
In another scenario where a person is stalking a person online and sexually harasses someone by sending obscene pictures, like in the case of Utsav Chakraborty, he was accused sending of obsecine photos to girl name mahima chakroborataty if the allegation are true then, it becomes an offence under Section 67, for transmitting material which is obscene in nature and in a scenario where the content is sexually explicit material then it is an offence under Section 67 A for transmitting material containing sexually explicit acts.
Stalking is a form of harassment comprising of repeated and persistent following with the intention of harming or causing fear to the person being followed. It can be in various forms- physical or online and under the law only a man can stalk a woman. This means that, the law is not gender neutral and the recourse is only for the woman.
Deu Baju Bodake v The State of Maharashtra- The court in this case looked upon the suicide by a woman who claimed that the reason for her suicide was the constant harassment and stalking done by the accused. The accused would always stalk her during work and insist upon getting married to her. The High Court held that the charges under Section 354D ought to have been recorded in addition to the charge for abetment to suicide.
Kalandi Charan Lenka vs State Of Odisha on 16 January, 2017- In this case the question arise of applicability of Sections 354-A/354-D/465/469/506/507/509 of the I.P.C. read with Section 66-C/66-D/67/67-A of the Information Technology Act. The accused had proposed to marry the victim and when the marriage could not be finalized, he had transmitted obscene letters and scandalous mail and even published pamphlets degrading the character of the victim. Through the obscene and vulgar mails and creation of the fake Facebook Account in the name of the victim girl, the accused exhibited his intention to intimidate her with the purpose of exploiting her sexually. Even when the girl had changed her place of study because of the sexual harassment, the accused had followed her, only to harass her, both online and offline.
The Cyber Cell of the Crime Branch had investigated the same and the High Court held that the accused was prima facie liable for offences under Section 354A, for sexual harassment, 354D for online stalking under the Indian Penal Code, 1860, Section 66-C for identity theft, Section 66-D for Impersonation and Section 67 and 67 for transmitting obscene and sexually explicit material

Edited by:- Radhika