The Delhi High Court clarified that a woman can be charged with gang rape under Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS) if she constitutes part of a group or acts in furtherance of the common intention to commit rape, even without personally committing the act. The Court upheld charges against petitioners, including a woman, for alleged offences between December 2023 and July 2024, rejecting the argument that only men can be liable for gang rape under the deeming provision.
Background & Facts
The Dispute
The petitioners (ANSXXX and ANR) challenged an order dated 17.01.2025 passed by the Additional Sessions Judge (POCSO) North District, Rohini Courts, which framed charges against them under Sections 70(2)/351(3)/64(2)(m) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The petitioners contended that petitioner No.1, being a woman, could not be charged with gang rape under Section 70 BNS, as the offence could only be committed by a group of men.
Key Facts
- FIR No. 0520/2024 was registered on 09.07.2024 at Bhalswa Dairy, Delhi, at the instance of petitioner No.1 (mother of the minor victim), initially alleging kidnapping
- During investigation, the victim came to the police station on 01.10.2024 and was sent for medical examination to BJRM Hospital, Delhi
- Upon medical examination, the victim stated she had been sexually assaulted
- A status report dated 11.02.2025 noted the victim refused internal medical examination
- The victim’s statement under Section 183 BNSS was recorded on 04.10.2024, wherein she stated:
- On 23.12.2023, petitioner No.1 threatened her that if she did not have physical relations with petitioner No.2, petitioner No.1 would kill her
- Despite her protestations, petitioner No.1 forced her to have physical relations with petitioner No.2
- Petitioner No.1 remained present in the same room during the incidents
- She was sexually assaulted multiple times between December 2023 and July 2024
- A video clip of the incident on 23.12.2023 would be found on petitioner No.1’s mobile phone
- When threatened again by petitioner No.1 into having sexual relations with petitioner No.2, she left home on 08.07.2024
- Upon completion of investigation, charges under the POCSO Act were added via chargesheet dated 27.11.2024
- The petitioners were charged under Sections 70(2)/351(3)/64(2)(m) BNS and Section 6 POCSO Act
- The alleged offences occurred between December 2023 and July 2024, straddling the period when the Indian Penal Code, 1860 (IPC) was in force and when the BNS came into effect
Procedural History
- 09.07.2024: FIR No. 0520/2024 registered at Bhalswa Dairy, Delhi
- 01.10.2024: Victim reported to police station and sent for medical examination
- 04.10.2024: Victim’s statement recorded under Section 183 BNSS
- 27.11.2024: Chargesheet filed adding POCSO Act charges
- 17.01.2025: Order on charge passed by Additional Sessions Judge (POCSO) framing charges against petitioners
- 30.01.2025: Notice on petition issued vide order; interim order passed staying further proceedings in the FIR before the trial court
- 02.05.2025 and 09.05.2025: Interim order modified to permit recording of victim’s deposition for bail consideration
- 11.02.2025: Status report filed on behalf of the State
- 06.03.2025: Mr. Rohan J. Alva appointed as Amicus Curiae to assist the Court
- 20.03.2025: Written submissions filed by learned Amicus
- 30.04.2025: Final written submissions filed on behalf of petitioners
- Date of hearing: Court heard Ms. Tanya Agarwal (counsel for petitioners) and learned Amicus at length
- 15.10.2026: Date of judgment
Relief Sought
The petitioners sought to quash the order on charge dated 17.01.2025, arguing that petitioner No.1 (a woman) could not be charged with gang rape under Section 70 BNS, and prayed for the charge to be set aside.
The Legal Issue
The central question was whether a 'woman' can be charged with the offence of 'gang rape' under Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS) or Section 376D of the Indian Penal Code, 1860 (IPC), given that Section 63 BNS defines rape as an offence committed only by a man.
Arguments Presented
For the Petitioners
The petitioners, through Ms. Tanya Agarwal, argued that a woman cannot be charged with gang rape under Section 70 BNS because Section 63 BNS defines rape as an offence committed exclusively by a man. They relied on the Supreme Court rulings in Priya Patel vs. State of M.P. & Anr. (2006) 6 SCC 263 and State of Rajasthan vs. Hemraj & Anr. (2009) 12 SCC 403, which held that a woman cannot be prosecuted for gang rape under the pre-2013 IPC provisions. They contended that the deeming fiction in Section 70 BNS (mirroring Explanation 1 to Section 376(2)(g) IPC) could not extend liability to women, as the underlying offence of rape remains gender-specific. They further argued that interpreting 'person' in Section 70 BNS to include women would lead to absurdity, since a woman acting alone cannot commit rape, and thus a group of women could not be liable for gang rape under the same logic.
For the Respondent/State
The learned Additional Public Prosecutor (APP) for the State adopted the submissions of the Amicus Curiae, Mr. Rohan J. Alva. The Amicus argued that Section 70 BNS is an independent and stand-alone substantive offence, not merely an Explanation to Section 63 BNS. He emphasized that the phrase 'one or more persons constituting a group or acting in furtherance of a common intention' in Section 70 BNS must be given its plain, gender-neutral meaning, as the provision was enacted to impose higher punishment for gang rape without restricting liability based on gender. He cited Sundari Gautam vs. State of NCT of Delhi (2024:DHC:5944), where this Court held Section 3 of the POCSO Act to be gender-neutral, and argued that the legislative intent behind Section 70 BNS was to punish all persons who share the common intention of having rape committed on a victim, regardless of their individual capacity to commit the act. The Amicus further submitted that the deeming provision creates a juristic postulate where each person who constitutes the group or acts in furtherance of the common intention is deemed to have committed rape, making them liable for gang rape even if they did not personally commit the act.
The Court's Analysis
The Court began by examining the legislative history of gang rape provisions. Prior to the Criminal Law (Amendment) Act, 2013, gang rape was only an aggravated form of rape punishable under Section 376(2)(g) IPC, which required reading with Section 375 IPC (defining rape as penile-vaginal intercourse by a man). Post-2013, Section 376D IPC was enacted as a separate offence, retaining the language of Explanation 1 to Section 376(2)(g) IPC. This structure was preserved in the BNS, with Section 63 BNS mirroring post-2013 Section 375 IPC and Section 70 BNS mirroring Section 376D IPC.
The Court held that Sections 376D IPC and 70 BNS are independent substantive provisions, not Explanations to be read in aid of Section 375 IPC or Section 63 BNS. Therefore, their interpretation must be confined to their own text, without importing the gender-specific definition of rape from Section 63 BNS. The phrase 'one or more persons constituting a group or acting in furtherance of a common intention' in Section 70 BNS uses the word 'persons', which, in the absence of contextual restriction, must be construed in its ordinary, gender-neutral sense. The Court rejected the argument that 'persons' should be read as 'men' only, noting that such a reading would contradict the plain language and legislative intent.
Crucially, the Court observed that the phrases 'one or more persons constituting a group' and 'acting in furtherance of a common intention' are connected by 'or', not 'and'. This disjunctive phrasing signifies that liability under Section 70 BNS arises if a person either constitutes the group or acts in furtherance of the common intention to have rape committed on the victim. Thus, a woman who does not personally commit rape but facilitates the act by acting in furtherance of the common intention (e.g., by threatening the victim to comply) is liable for gang rape. The deeming fiction in Section 70 BNS creates a juridical postulate that each person who meets either condition is deemed to have committed rape, thereby attracting liability for gang rape.
The Court clarified that this ruling does not expand the definition of rape itself; a woman acting alone cannot be charged with rape under Section 63 BNS. However, for the distinct offence of gang rape under Section 70 BNS, liability attaches to any person - regardless of gender - who shares the common intention of having rape committed on a victim and acts in furtherance thereof or constitutes the group. The Court emphasized that this interpretation aligns with the settled principle of strict construction of penal provisions, as the language of Section 70 BNS is clear and unambiguous in imposing liability based on participation in the common intention, not on the gender of the accused.
The Verdict
The petitioners failed in their challenge. The Court dismissed the petition and upheld the order on charge dated 17.01.2025 passed by the Additional Sessions Judge (POCSO) North District, Rohini Courts. The operative direction was that the trial court may proceed with recording the victim’s deposition to consider the petitioners’ bail plea, as permitted by the modified interim orders dated 02.05.2025 and 09.05.2025. No monetary compensation, sentence, or fine was involved in this interlocutory matter concerning charge framing.
What This Means For Similar Cases
Liability Arises From Common Intention, Not Personal Act
Practitioners must note that under Section 70 BNS, liability for gang rape does not require the accused to have personally committed the act of rape. Any person who constitutes the group or acts in furtherance of the common intention to have rape committed on the victim is liable, even if they did not physically participate in the act. This broadens the scope of prosecutable actors in gang rape cases to include facilitators, enforcers, or those who create the environment for the offence.
Gender-Neutral Construction Of 'Persons'
The word 'persons' in Section 70 BNS must be interpreted in its plain, gender-neutral meaning. Defence arguments seeking to restrict liability to men only based on the definition of rape in Section 63 BNS are untenable. Prosecutors can now charge women, transgender individuals, or any person as accomplices in gang rape if evidence shows they shared the common intention and acted in furtherance thereof.
Deeming Fiction Creates Juristic Liability
The deeming provision in Section 70 BNS operates as a legal fiction that treats each person who meets the group/common intention criteria as having committed rape for the purpose of imposing liability. This shifts the focus from proving the actual act of rape by each accused to proving their participation in the shared criminal design. Defence strategies must now rebut the existence of common intention or the accused’s role in furthering it, rather than solely disputing personal involvement in the sexual act.
