Women can be charged with gang-rape: Delhi High Court

The Delhi High Court has held that a woman can be charged for the offence of gang-rape under Section 70 of the Bharatiya Nyaya Sanhita (BNS) [Ansxxx and anr v. State of NCT of Delhi And Anr].

Justice Anup Jairam Bhambhani reasoned that Section 70 of the BNS is a gender neutral provision.

"There is no rationale or basis to restrict the word 'persons' appearing in the phrase 'one or more persons constituting a group' (in Section 70) 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," the Court held.

The Court further explained that for the offence of gang rape to arise, it is not necessary that a person acting in furtherance of a common intention to commit crime must also have physically commited the offence of rape.

"For instance, a woman who may not be part of the group of persons who commit the physical offence of rape may yet have acted in furtherance of a common intention to have rape committed upon the victim," the Court added.

The Court highlighted that Section 70 provides that a person who is part of a group or who acts in furtherance of a common intention to enable the commission of the crime, is also deemed to have committed the offence of gang rape.

"There is no basis to hold that a woman cannot be charged with the offence of gang rape under section 376D IPC (replaced by Section 70 BNS) and section 70 BNS," the Court concluded.

The Court also quoted a German proverb in its judgment to comment on the culpability of someone who helps others commit a crime.

“He who holds the ladder is as guilty as the thief,” the Court said.

The Court passed the ruling in a case involving allegations that a woman had forced her minor daughter to have sexual relations with a man. It was also alleged that the woman was present when her daughter was subjected to sexual assault repeatedly, between December 2023 and July 2024.

The woman was among those booked in the criminal case registered in July 2024 under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the BNS. A trial court also framed the charge of gang rape under Section 70 of the BNS against her.

The accused woman challenged this charge before the High Court. She argued that she could not be charged with gang rape since she was a woman and that under Indian law, the offence of rape can only be committed by men.

In a judgment delivered on October 15, the Court dismissed her plea, holding that a person may be charged with the offence of gang rape regardless of gender. The Court ruled that a woman can also be charged for the offence of gang-rape under BNS, provided she is not the sole accused.

“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," the Court said.

The Court added that whether or not a woman can be named in a gang rape case as the sole accused is left to be decided in future cases.

"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," the Court observed.

Further, it clarified that it has not commented on whether the term "man" appearing in the legal provisions punishing the offence of rape is gender neutral or not.

Advocates Tanya Agarwal, Ritu, Akshay Singhal and Vishal appeared for the petitioners.

Advocate Rohan Alva appeared as amicus curiae to assist the Court, along with advocate Anant Sanghi.

Additional Public Prosecutor Digam Singh Dagar represented the State.

[Read judgment]