Woman Can Also Be Charged With Offence Of Gang Rape: Delhi High Court
The Bench noted that a woman alone cannot be charged; distinguished Priya Patel and Hemraj as gang rape is now a standalone offence; left it open whether “man” in Section 63 BNS is gender-neutral.
The Delhi High Court has held that there is no basis to hold that a woman cannot be charged with gang rape in furtherance of common intention, under Section 376D of the IPC and Section 70 of the BNS. The Court observed that the word “persons” in the phrase “one or more persons constituting a group” must be construed in its gender-neutral form, and that the common intention spoken of is not restricted to men.
The Court distinguished the Supreme Court’s judgments in Priya Patel v. State of M.P. & Anr. (2006) 6 SCC 263 and State of Rajasthan v Hemraj & Anr. (2009) 12 SCC 403, which concerned gang rape as an Explanation to Section 376(2)(g) IPC, tied to the definition of rape. It held that gang rape is now a separate substantive offence. It clarified that a woman alone cannot be charged with gang rape, and expressed no opinion on whether “man” in Section 63 of the BNS is gender-neutral.
A Single Judge Bench of Justice A.J. Bhambhani observed, “This court is of the view that there is no rationale or basis to restrict the word ‘persons’ appearing in the phrase ‘one or more persons constituting a group’ to mean only a group of men; and therefore, the word “persons” appearing in the said phrase must be construed in its gender-neutral form. Furthermore, there is also no basis to hold that the phrase ‘acting in furtherance of a common intention’ must be restricted to the common intention only of men…the inevitable conclusion is that though a person may not individually have committed the act of rape as set-out in the post-2013 section 375 IPC and section 63 BNS, they are deemed to have committed the offence of rape within the meaning of section 376D IPC and section 70 BNS; and are therefore liable to be charged with that offence of gang rape regardless of gender…this court is of the view that there is no basis to hold that a woman cannot be charged with the offence of gang rape under section 376D IPC and section 70 BNS”.
“It is, however, necessary to clarify that a woman alone cannot be charged with the offence of gang rape since that would prima-facié not be in conformity with the statutory definition of rape as it appears even in the post-2013 section 375 IPC and section 63 BNS, as currently construed. This question may have to be visited in an appropriate case, especially in light of the additional acts that have been criminalised in the expanded definition of ‘rape’, which acts can equally be committed by a non-male offender. This court would reiterate that it is not expressing any opinion on whether the word ‘man’ appearing in the post-2013 section 375 or section 63 BNS is gender-neutral or not”, it noted further.
Advocate Tanya Agarwal appeared for the petitioner, Advocate Rohan J. Alva appeared as amicus curiae while Digam Singh Dagar, APP appeared for the respondent.
An FIR was registered on July 09, 2024 on the complaint of the mother of a minor, initially alleging kidnapping. After the minor came to the police station on October 01, 2024, she stated under Section 183 BNSS on October 04, 2024 that her mother had threatened and forced her into sexual relations with a co-accused between December 2023 and July 2024, while remaining present in the room.
The chargesheet was filed on November 27, 2024, pursuant to which by order dated January 17, 2025, the Additional Sessions Judge (POCSO), North District, Rohini, framed charges under Sections 70(2), 351(3) and 64(2)(m) BNS and Section 6 of the POCSO Act. The petitioners challenged only the gang rape charge against the mother. Notice was issued on January 30, 2025, with a stay on trial proceedings, and Rohan J. Alva was appointed Amicus Curiae on March 06, 2025.
The Court noted that the 2013 amendment expanded the definition of rape and made gang rape a separate offence, retained as Section 70 BNS. It held that this provision need not be confined to the definition of rape. Giving the offence its strict meaning, it said, does not widen the offence of rape. The two limbs, “constituting a group” and “acting in furtherance of a common intention”, are joined by “or”, so a person need not physically commit the offence. The phrase “deemed to have committed the offence of rape” shows that each member need not individually have committed rape.
The Court upheld the order on charge and dismissed the petition with pending applications. It held that the POCSO charge is independently sustained by Sundari Gautam.
Cause Title: ANS XXX & Anr. v. State of NCT of Delhi & Anr. (Neutral Citation: 2026:DHC:9197)
Appearances:
Petitioners: Tanya Agarwal, Ritu, Akshay Singhal, Vishal M., Advocates.
Respondents: Amicus Curiae Rohan J. Alva, with Anant Sanghi, Advocate, Digam Singh Dagar, APP, with SI Naresh Kumar.