Understanding the FIR Process for Online Harassment and Cyberstalking under the BNSS, 2023

Understanding the FIR Process for Online Harassment and Cyberstalking under the BNSS, 2023 

Lisa Ghosh
BBA LL.B. Student, Sister Nivedita University, Kolkata 

 

1. Introduction 

The first Information Report is a document prepared by the police about the commission of a cognizable offence. When a cognizable offence is committed against any individual, then the victim of that offence or any other person on behalf of the victim or who have witnessed the happening of that offence can report the police either orally or in written, as it is report of information that reaches to the police first, that’s why it is called First Information Report (FIR). An FIR can be registered only when the information is about the commission of a cognizable offence. Cognizable offences [defined under section 2(g) of BNSS] are those crimes that are more severe in nature, such as murder, rape, kidnapping and dowry death are considered severe threats to public safety and often carry lengthy prison sentences. For these offences police can start investigation, take actions and arrest the accused without a magistrate’s approval. The lodging of a FIR is the initiative for the police to start the investigation and it ensures that the complaint of the victim goes on written record, so police cannot dismiss or deny it, which will help in court trials against the accused and a FIR ensures uniformity.  

With the increasing use of social media and other digital platforms, incidents of online harassment and cyberstalking have become more common in India. These offences may involve spam of unwanted messages, fake social media accounts/websites, identity theft, online threats, or the sharing of private pictures without consent, which can seriously affect a person’s privacy, dignity, and mental health. To address these offences, India has introduced legal protections under the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and relevant provisions of the Information Technology Act, 2000. However, despite these laws, victims often face practical challenges such as anonymous offenders, difficulties in preserving digital evidence, jurisdictional issues, and a lack of awareness about the available legal remedies. This makes it important for individuals to understand not only their legal rights but also the procedure for filing an FIR when such offences occur. 

2.  Background and Legal Framework Governing Online Harassment and Cyberstalking in India 

The digital age has transformed the way people communicate, allowing interaction to take place instantly across geographical boundaries. However, this technological advancement has also changed the nature of criminal activities, with harassment and stalking increasingly shifting from physical spaces to online platforms. Unlike traditional offences, cyber offenders often exploit anonymity, fake identities, and the borderless nature of the internet, making it difficult to identify them and determine jurisdiction. The widespread use of digital platforms has therefore created new challenges for law enforcement agencies, highlighting the need for legal mechanisms that can address technology-driven offences and ensuring effective protection for victims. 

Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaces Section 154 of the Code of Criminal Procedure (CrPC), 1973, highlights the procedure for registering a FIR in cases involving cognizable offences. This provision allows a person to complaint against this kind of offences either orally, in written, or through E- filling by electronic communication, making the process more accessible in this digital age. Provided that, in case of oral submission, the police in charge must record it in writing, communicate the filed complaint to the complainant, and obtain their signature. Similarly in case of online complaint through video or any other form, the police are required to go through the same procedure, and handover a copy of the FIR to the complainant free of cost. By introducing electronic communication alongside traditional method, section 173 of BNSS is trying to make the FIR filling process more convenient for the people and ensuring a speedy justice to the victims of cognizable offences. 

To safeguard people’s rights and fight with these offences, the legal system has provided some provisions, such as – 

• section 78 of BNS, which defines stalking as following a woman, or monitors the woman’s online activity and trying to contact such woman through electronic communication platforms repeatedly even after clear sign of disinterest by such woman and the consequences provided up to 3 years imprisonment and fine for first convicts and 5 years with fine for subsequent convicts.  

• Section 75 of BNS, defines sexual harassment as demanding for sexual favour showing inappropriate photos or videos against the will of a woman, or through other online platforms and provided that punishment of rigorous imprisonment up to 3 years, or fine, or imprisonment of either description for up to 1 year, or fine, based on the offence. 

• Section 79 of BNS, that states that, any inappropriate word, sound, or gesture that are made to harm the modesty of a woman is punishable under law. 

These offences are also hampering the fundamental rights given by the Constitution of India, the right to life and personal liberty under article 21, the Supreme Court has interpreted this article to include the right to live with privacy, dignity, status and mental well-being. Online harassment and cyberstalking often interfere with victim’s online and offline privacy, preventing them to live their usual life. Therefore, protecting individuals from such digital offences is not merely a matter of criminal law but also an important step towards safeguarding the constitutional rights guaranteed under Article 21. 

3. Judicial Interpretation of FIR Registration and the Right to Privacy 

A significant judicial precedent in the context of FIR registration is Lalita Kumari v. Government of Uttar Pradesh (2013). The case arose when Lalita Kumari’s FIR was not registered by the police even after it discloses cognizable offence and as a right, she approached the Supreme Court. The principal issue before the court was whether registering an FIR under section 154 of CrPC, 1973 is mandatory or the police can conduct a preliminary inquiry before registering the FIR. The court held that, registering the FIR is mandatory whenever the police got the information of the commission of a cognizable offence. The court further clarifies that; a preliminary inquiry may be conducted in limited categories of cases but they cannot use this as a routine reason to refuse to register an FIR. Although Section 154 CrPC has now been replaced by Section 173 of the BNSS, 2023, the principle laid down in Lalita Kumari continues to be highly relevant, as it reinforces the police to fulfil their duty promptly in case of cognizable offences and registration of FIR, including the cases of online harassment and cyberstalking. 

Apart from the procedural safeguards relating to FIR registration, another landmark judgement that significantly strengthen the legal protection against cyber crimes is Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) primarily arose from the challenge to the Aadhaar scheme, which raised a constitutional question whether the right to privacy is a fundamental duty under the constitution of India. The Supreme Court unanimously held that the right to privacy is an intrinsic part of the right to life and personal liberty stated under article 21 of Indian Constitution. The Court observed that privacy extends beyond physical space and it includes informational privacy, personal autonomy, dignity, and the freedom to make individual choices. This judgement is particularly relevant to online harassment and cyberstalking as these offences include unauthorized access to private information and misuse of it, identity theft and constant digital surveillance. By recognising privacy as a fundamental right, the court reinforced the state’s responsibility to protect the individual’s digital life from unlawful intrusions and laid a strong constitutional foundation for safeguarding victims of cyber offences. 

4. Critical Analysis of the Existing Legal Framework Governing Online Harassment and FIR Registration 

4.1.  Practical Challenges in Reporting Online Harassment 

Despite the several legal remedies available under BNSS and other cyber laws, lots of online harassment and cyberstalking cases continue to go unreported. One of the biggest reasons is victims are often fear of social stigma, victim-blaming, or the belief that reporting will do nothing, which stops them from approaching the police. Sometimes the reporting process can also feel confusing and emotionally overwhelming, particularly when a victim is already dealing with trauma and emotional breakdown. Delays in reporting help offenders to delete harming posts, deactivate fake accounts, or destroy digital evidence, making investigations more difficult. Moreover, the anonymous nature of the internet and the rapid spread of harmful content further complicate enforcement of laws. These practical barriers show that legal protection alone is not enough; effective implementation, victim-friendly reporting mechanisms, and greater public awareness are equally essential to ensure that justice is accessible to every survivor. 

4.2. Gaps in the Existing Legal Framework 

While the section 173 of BNSS introduces the new registration mode of FIRs including online registration and time bound inquiries, certain loopholes in the legal framework still exist. One of the key concerns is that Section 173 does not clearly define what constitutes a prima facie case during a preliminary inquiry. This lack of clarification may create confusion among the police officers, and it can cause delays or even refusal to register an FIR in deserving offences. Although victims have the right to approach the Magistrate if an FIR is refused, the absence of clear guidelines can make it difficult to challenge such decisions effectively. Therefore, the success of these reforms depends not only on legislative changes but also on consistent implementation, clear procedural guidelines, and proper training of law enforcement authorities. 

While the current legal framework has made significant progress in addressing online harassment and cyberstalking, certain practical and procedural shortcomings continue to affect its effectiveness. To overcome these challenges and ensure better protection for victims, the following measures may be considered. 

• Strengthen Public Awareness and Digital Legal Literacy 

Many people are still unaware about that they can file an FIR and report about cyber offences through online platforms. So, the government should conduct awareness campaigns in workplaces, schools, universities and social media platforms to educate people about their legal rights, the FIR process and the importance of preserving digital evidence such as screenshots, emails, and chat records. 

  

• Improve Police Training and Cyber Investigation Skills 

Although the BNSS has modernized the FIR process but only the proper implementation of the remedies can make it effective. The police officers must be given special trainings about collection of digital evidences, cyber laws, registration of electronic FIRs, cyber investigation, and victim friendly handling of online harassment complaints. Better trained police can handle the complaints effectively. 

 

• Develop Clear Guidelines for Section 173 BNSS  

One of the major concerns under Section 173 of BNSS is the absence of a clear definition of what constitutes a prima facie case during a preliminary inquiry. The government should issue uniform procedural guidelines to prevent confusion and reduce delays or refusals in registering FIRs. 

 

• Strengthen Cyber Infrastructure and Digital Forensics 

More cyber police stations, modern forensic laboratories, and better technological resources should be established across the country. Since online evidence can be deleted or altered quickly, faster forensic support is essential for effective investigation and prosecution. 

 

5. Conclusion 

The rapid growth of digital technology has transformed the way people communicate, but it has also created new opportunities for online harassment and cyberstalking. Although India has strengthened its legal framework through the BNSS, the Information Technology Act, and judicial interpretation, the law alone cannot fully address the challenges posed by cybercrime. Victims still face practical barriers such as delayed reporting, lack of awareness, anonymous offenders, and inconsistencies in investigation. 

The decisions in Lalita Kumari v. Government of Uttar Pradesh and Justice K.S. Puttaswamy (Retd.) v. Union of India demonstrate that an effective legal system must protect both procedural rights and fundamental rights. Their principles continue to guide how complaints should be handled while safeguarding privacy, dignity, and access to justice. 

To make these protections meaningful, legal provisions must be supported by stronger implementation, specialised cybercrime investigation, public awareness, and closer cooperation between law enforcement agencies and digital platforms. As technology continues to evolve, the legal system must also adapt to ensure that victims receive timely protection and that accountability keeps pace with emerging forms of online abuse. Building a safer digital space ultimately requires not only effective laws but also consistent enforcement and collective responsibility. 

FAQs (Frequently Asked Questions) 

1. Can I file an FIR for online harassment or cyberstalking? 

Yes. If the acts complained of disclose a cognizable offence under the applicable law, you can report the matter to the police and seek registration of an FIR under Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 

2.  Can an FIR be filed online? 

Section 173 BNSS permits information relating to a cognizable offence to be given through electronic communication, subject to the procedure prescribed by law. Victims may also use the National Cyber Crime Reporting Portal to report cyber offences. 

3. What evidence should I preserve before filing an FIR? 

You should preserve screenshots, chat records, emails, URLs, usernames, call logs, photographs, videos, and any other digital material that may help establish the offence. Avoid deleting the evidence before reporting the incident. 

4. What should I do if the police refuse to register my FIR? 

If the police refuse to register an FIR despite information disclosing a cognizable offence, you may approach the Superintendent of Police or seek appropriate legal remedies before the Magistrate, as provided under the law. 

5. Is my identity kept confidential when I report online harassment? 

The law provides safeguards for victims in appropriate cases. The extent of confidentiality depends on the nature of the offence and the applicable legal provisions, but victims should inform the investigating officer if they have concerns about their privacy or safety. 

Reference 

• The Bharatiya Nagarik Suraksha Sanhita, 2023.  
• The Bharatiya Nyaya Sanhita, 2023.  
• The Information Technology Act, 2000.  
• The Constitution of India.  
• Lalita Kumari v. Government of Uttar Pradesh & Ors., (2014) 2 SCC 1.  
• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.  
• National Cyber Crime Reporting Portal.  
• National Crime Records Bureau (NCRB).