The Delhi High Court has held that a woman can be charged with gang rape under Section 70 of the Bharatiya Nyaya Sanhita (BNS), ruling that the provision is gender-neutral and does not restrict liability to men.

The bench headed by Justice Anup Jairam Bhambhani observed that there was no justification for interpreting the word “persons” in the phrase “one or more persons constituting a group” under Section 70 BNS as referring only to men.

“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 clarified that a person need not physically commit the act of rape to be charged with gang rape. A person who acts in furtherance of a common intention to facilitate the commission of the offence may also be held liable under the provision.

“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 observed.

It explained that Section 70 BNS covers not only those who physically commit the offence but also those who participate in the group or act in furtherance of a common intention to facilitate the crime.

“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 referred to a German proverb to emphasise the criminal liability of those who facilitate an offence, observing, “He who holds the ladder is as guilty as the thief.”

The ruling arose from a case involving allegations that a woman had forced her minor daughter to engage in sexual relations with a man. It was further alleged that the woman was present when her daughter was repeatedly sexually assaulted between December 2023 and July 2024.

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

Challenging the charge before the High Court, the woman argued that she could not be prosecuted for gang rape because she was a woman and, under Indian law, the offence of rape could be committed only by a man.

In its judgment delivered on October 15, the High Court rejected her plea, holding that a woman could be charged with gang rape under Section 70 BNS, provided she was 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.

However, the Court left open the question of whether a woman could be charged with gang rape as the sole accused, observing that the issue could be examined in an appropriate case.

“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.

The Court clarified that it had not expressed any opinion on whether the term “man” in the statutory provisions defining and punishing rape should itself be interpreted as gender-neutral.

Advocates Tanya Agarwal, Ritu, Akshay Singhal and Vishal appeared for the petitioners. Advocate Rohan Alva appeared as amicus curiae, assisted by advocate Anant Sanghi. Additional Public Prosecutor Digam Singh Dagar represented the State.

Case: Ansxxx and Anr. v. State of NCT of Delhi and Anr.