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 (IPC) and Section 70 of the Bharatiya Nyaya Sanhita (BNS), even if she has not personally committed the act of rape.

Justice Anup Jairam Bhambhani held that the expression “persons” used in the provisions on gang rape cannot be restricted to men, and that the offence can be attracted against an accused regardless of gender.

The Court clarified that the question before it was whether a woman could be charged with gang rape, and not whether a woman could independently commit the offence of rape as defined under Section 375 IPC or Section 63 BNS. It expressly left the latter question open.

“...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,” the Court said.

“As a sequitur to the above, 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 added.

The Court made the observations while dismissing a plea challenging an order framing charges against a woman and another accused under various provisions of the BNS, including Section 70 and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.

The woman had argued that since the statutory definition of rape refers to a “man” as the perpetrator, she could not be charged with gang rape.

Rejecting the challenge, the Court noted that the legal framework had undergone a significant change following the 2013 criminal law amendments, which made gang rape a separate, substantive offence under Section 376D pf IPC. The provision was subsequently retained under Section 70 of BNS.

The Court observed that the expanded definition of rape introduced in 2013, and subsequently retained under the BNS, covers acts beyond penile-vaginal penetration.

“Delineation of gang rape as a separate provision under section 376D IPC and section 70 BNS is, in the opinion of this court, intended to engraft a separate, substantive provision or offence in the penal law. Accordingly, the interpretation and construction to be accorded to these separate, substantive penal provisions need not be confined to the definition of rape in section 375 IPC or section 63 BNS,” the Court said.

It added 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 that the expression must be construed in a gender-neutral manner.

“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,” it said.

“In the opinion of this court, this is significant, since for purposes of the offence of gang rape it is not necessary that a person acting in furtherance of a common intention must also be amongst the persons who physically commit 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,” it added.

Further, the Court, however, clarified that a woman acting alone cannot be charged with gang rape, and that it was not expressing any opinion on whether the word “man” in the definition of rape under Section 375 of IPC or Section 63 of BNS is gender-neutral.

The Court also upheld the charge under Section 6 of the POCSO Act, relying on its earlier decision which held that the offence of penetrative sexual assault under the POCSO Act is gender-neutral.

Accordingly, the Court upheld the trial court's order on charge dated January 17, 2025, and dismissed the plea.