Can Taking Pictures Alone Constitute Stalking under the Bharatiya Nyaya Sanhita?

The offence of stalking, codified under Section 78 of the Bharatiya Nyaya Sanhita, 2023 (BNS), is a significant provision in Indian criminal law designed to protect women against unwanted pursuit, harassment, and intrusion into their privacy. However, its scope and interpretation continue to raise complex questions. One such issue is whether merely taking photographs of a woman, without more, constitutes stalking under the BNS. 

This question was recently considered by the Himachal Pradesh High Court in Krishan Kumar Kasana v. State of Himachal Pradesh & Anr. (2025:HHC:26503), where the Court had to decide whether allegations of photographing a woman could be brought within the ambit of stalking. The judgment provides valuable insights into how courts are interpreting Section 78 BNS and sets a precedent for distinguishing between genuine stalking and acts that, while potentially objectionable, do not satisfy the statutory ingredients of the offence.

The specific question that often arises is whether taking pictures of a woman without her consent, by itself, constitutes the offence of stalking under the BNS. This article seeks to answer this question through a detailed exploration of the statutory framework, judicial interpretation, and comparative legal principles.

Statutory Framework: Section 78 of the BNS

Section 78 of the Bharatiya Nyaya Sanhita defines and criminalizes stalking. The provision reads:

Any man who—

(i) 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

(ii) monitors the use by a woman of the internet, e-mail or any other form of electronic communication, commits the offence of stalking.

Essential Ingredients of Section 78 BNS 

For an act to qualify as stalking under Section 78 of the Bharatiya Nyaya Sanhita, the following elements must be satisfied:

1. Persistent Following or Contact – The accused man must repeatedly follow a woman or attempt to initiate personal contact with her, despite her unwillingness.
2. Surveillance of Online Presence – The accused monitors or keeps track of the woman’s internet activity, e-mails, or other forms of electronic communication without authority or consent.
3. Disregard of Express Disinterest – The woman must have clearly conveyed her lack of interest, which the man consciously disregards.
4. Objective of Personal Engagement – The conduct must be directed towards creating or maintaining personal interaction with the woman.

Case Background: Krishan Kumar Kasana v. State of H.P.

Allegations

• The case arose out of FIR No. 107 of 2025, registered at Police Station Baddi, District Solan, Himachal Pradesh.
• The informant, a Regional Officer in the Himachal Pradesh State Pollution Control Board, alleged that the petitioner, Krishan Kumar Kasana, proprietor of M/s K.K. Enterprises, attempted to intimidate him.

Specific allegations included:

• On 07.10.2024, the petitioner allegedly tried to hit the informant’s vehicle at a lonely place between Baddi and Shimla.
• He allegedly took videos and photographs of the informant’s wife.
• These acts were alleged to have been committed to pressurise the informant into granting undue favours to the petitioner.

Defence

• The petitioner argued that the allegations were false and motivated, pointing out that he had earlier made complaints against the informant regarding corruption.
• He claimed the FIR was a counterblast to these complaints.
• It was further contended that even if the allegations were taken at face value, they did not amount to stalking under Section 78 BNS, since the element of repeated pursuit and intent to foster interaction was absent.

State’s Stand

• The prosecution opposed bail, relying on call detail records (CDRs) to argue that the petitioner was indeed following the informant.
• It was submitted that custodial interrogation was necessary and that releasing the petitioner would hamper the investigation.

Judicial Analysis

Justice Rakesh Kainthla, after hearing both parties, engaged in a detailed analysis of the scope of anticipatory bail and the definition of stalking under Section 78 BNS.

On Anticipatory Bail Principles

The Court relied on precedents such as:

• P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24, which held that anticipatory bail is an extraordinary remedy and must be exercised sparingly.
• Srikant Upadhyay v. State of Bihar (2024 SCC OnLine SC 282), where the Supreme Court emphasised that anticipatory bail cannot be the rule.
• Pratibha Manchanda v. State of Haryana (2023) 8 SCC 181, highlighting the need to balance individual liberty with fair investigation.
• Devinder Kumar Bansal v. State of Punjab (2025) 4 SCC 493, reiterating that anticipatory bail is justified only in exceptional cases.

The Court noted that while anticipatory bail is to be granted with caution, it is equally important to protect individuals from false implication and misuse of law.

On Whether Taking Photographs Amounts to Stalking

The Court observed that:

• The allegation was limited to the petitioner taking photographs of the informant’s wife.
• Section 78 BNS requires the following and contacting a woman to foster interaction or monitoring her online activities.
• Mere act of taking photographs, without repeated pursuit or attempts at personal interaction, does not fall within the statutory definition of stalking.

On Evidentiary Value of CDRs

• The prosecution relied on location data to argue that the petitioner was following the informant.
• However, the Court found inconsistencies: the CDRs placed the petitioner at different locations than the informant at relevant times.
• Hence, the evidence did not corroborate the FIR allegations.

On Custodial Interrogation

• The Court emphasised that since the petitioner had already joined the investigation, custodial interrogation was not necessary.
• No fruitful purpose would be served by detaining him.

Court’s Decision

The Court held:

• Taking photographs of a woman, without repeated pursuit or intent to foster personal interaction, does not amount to stalking under Section 78 BNS.
• The evidence in the status report did not support the prosecution’s case.
• Custodial interrogation was unnecessary.

Accordingly, the Court allowed the petition for anticipatory bail, making the interim order permanent.

Key Highlights of the Decision

Rakesh Kainthla stated: 

“In the present case, the allegations in the complaint do not show that the petitioner had followed the informant’s wife and contacted her to foster personal interaction. The only allegation is that the petitioner had taken the photographs of the informant’s wife. Prima facie, these allegations do not satisfy the definition of stalking. The status report does not show that the custodial interrogation of the petitioner is required. Therefore, no fruitful purpose would be served by detaining the petitioner in custody.”

Broader Legal Implications

1. Narrow Interpretation of Stalking: This judgment clarifies that not every intrusive act involving a woman qualifies as stalking. The legislature intended stalking to address persistent harassment, not isolated acts like taking photographs.
2. Protection from Misuse of Law: The ruling ensures that the stalking provision is not misused in personal or professional disputes, especially where allegations are retaliatory or politically motivated.
3. Privacy Concerns: While the act of photographing someone without consent may raise privacy concerns, it does not automatically fall under stalking. Such conduct may be addressed under other provisions (e.g., Section 72 IT Act for breach of privacy, or civil remedies), but not under Section 78 BNS unless the statutory ingredients are met.
4. Evidentiary Threshold in Bail Matters: The case underscores the importance of prima facie evidence when opposing bail. Mere allegations unsupported by corroborative evidence (like inconsistent CDRs) cannot justify the denial of liberty.

Conclusion

The Himachal Pradesh High Court in Krishan Kumar Kasana v. State of H.P. has provided important clarity on the scope of Section 78 of the Bharatiya Nyaya Sanhita, 2023. It held that taking pictures alone, without repeated pursuit or intent to foster interaction, does not amount to stalking.

This judgment strikes a careful balance between protecting women from harassment and preventing misuse of criminal law in private disputes. It also reinforces the principle that anticipatory bail, while extraordinary, remains a vital safeguard against false implication.

As India transitions into the new BNS framework, such judicial pronouncements will shape how criminal provisions are applied in practice, ensuring they remain true to legislative intent while protecting constitutional liberties.

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