The Delhi High Court has held that a woman can be charged with the offence of gang rape under Section 376D of the Indian Penal Code, 1860 (IPC), and Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS), even though the statutory definition of rape refers to a man. Justice A.J. Bhambhani held that the expression ‘persons’ in the provisions on gang rape must be interpreted in a gender-neutral manner.
The Court was hearing a criminal revision petition challenging an order on charge passed by the Additional Sessions Judge, Rohini Courts, which charged a woman and another accused with offences including gang rape and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
The case arose from allegations that the woman had threatened her minor daughter and forced her to have sexual relations with the co-accused, while remaining present during the alleged assaults. The alleged incidents took place between December 2023 and July 2024, spanning the period during which the IPC was in force and the subsequent commencement of the BNS.
The petitioners argued that since the definition of rape under Section 63 BNS refers to a man, a woman could not be charged with gang rape under Section 70 BNS. They relied on Supreme Court decisions, including Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263, to contend that the offence could not be extended to a woman.
Rejecting this contention, the High Court distinguished between the offence of rape and the distinct offence of gang rape. It held that the provisions on gang rape impose liability on persons acting as a group or in furtherance of a common intention, and there was no basis to restrict the term ‘persons’ to men alone. The Court clarified that it was not deciding whether a woman could commit the standalone offence of rape under Section 63 BNS or whether the word “man” in that provision was gender-neutral.
The Court further clarified that a woman cannot be charged with gang rape acting alone, as the charge necessarily involves the statutory requirements of group action or common intention. It also upheld the charge under Section 6 of the POCSO Act, relying on its earlier ruling in Sundari Gautam v. State of NCT of Delhi, 2024:DHC:5944.
Accordingly, the High Court upheld the order on charge dated January 17, 2025, and dismissed the criminal revision petition.
