A woman can be charged with gang rape even if she did not physically commit rape herself, if the case is that she was involved in facilitating the offence as part of a gang with a common purpose according to the Delhi High Court. The lower court has made it clear that the provisions on gang rape in Indian criminal law, and whether a person’s gender makes her or him not subject to gang rape in India have to be in the same category, can be different in terms of sex.
Justice Anup Jairam Bhambhani on Thursday dismissed a woman’s plea to challenge the framing of charges against her. The woman is alleged to have forced her minor daughter to have sex with another accused.
The High Court asked if gang rape could be prosecuted under Section 376D in the Indian Penal Code and Section 70 in Bharatiya Nyaya Sanhita (BNS). The answer was yes, there was no legal basis to suggest that a woman could not be charged under these provisions as she had not been involved in the physical act of rape.
The decision is about the role of persons who are alleged to have assisted a sexual offence and was based on the principle of common intention. But that does not establish guilt on behalf of the woman. The accusations will have to be reviewed through the judicial process.
What the Delhi High Court Said About Section 70 BNS
In interpreting Section 70 of the BNS, the High Court considered the legal significance of the term “deemed to have committed the offence of rape”. Under this provision, a woman is raped by one or more persons acting as a group or in furtherance of a common intention.
According to the court’s reasoning, we do not require every member of such a group to have performed the physical act of rape before they can be charged with gang rape. A person who acted as the facilitator of the crime can also be prosecuted if it is alleged that they were involved.
The ruling therefore distinguishes between physically doing the act and allegedly participating in its commission as a group. The court's interpretation recognizes that participation in a criminal offence can take different forms and the absence of direct physical involvement does not automatically rule out prosecution under the gang rape provisions.
However, there are important qualifications for the judgment. The court clarified that it was not ruling that a woman acting alone could be charged with gang rape under these provisions. It also did not indicate whether the definition of rape under Section 375 of the post-2013 IPC or Section 63 of the BNS should be interpreted as gender-neutral.
The decision is on the application of gang rape provisions to one of the alleged participants who may have facilitated the offence done by another person.
What Is the Case Against the Woman?
The case was based on a First Information Report (FIR) registered at Delhi’s Bhalswa Dairy police station in July 2024. The woman’s minor daughter alleged that her mother threatened her and ordered her to have sexual relations with another accused person, the prosecution said.
The complaint described repeated incidents between December 2023 and July 2024. The girl left home in July 2024 after another incident during which her mother threatened her and forced her to have sexual relations with the other accused.
Following the investigation, charges were framed against the woman by the trial court. She then approached Delhi High Court to challenge the decision and argued that the definition of rape in Section 63 of the BNS describes an act by a man and hence the woman could not be prosecuted for gang rape.
Her plea raised legal questions about the relationship between the definition of rape and the provision that establishes criminal liability for gang rape involving multiple people acting with a common intention.
The High Court rejected that challenge and upheld the trial court's order dated 17 January 2025, framing charges against her. The dismissal means that the case can proceed in accordance with the applicable legal process. It does not amount to a finding that the allegations have been proved.
Legal Arguments Presented Before the High Court
Rohan J. Alva, who acted as an amicus curiae for the court, said gender should not determine whether a person can be named as an accused in a gang rape case when they allegedly formed part of a group and contributed to the commission of the offence.
He argued that there was no rationale for restricting the application of Section 376D of the IPC and Section 70 of the BNS only to male participants. And the relevant provisions must apply to people who have the same intention of committing rape on a victim regardless of their gender, he wrote.
The court considered this argument when considering the wording and purpose of the gang rape provisions. The statutory framework must be judged in the context of group participation and the alleged contribution of each accused, rather than assuming that only the person who physically commits rape can face charges, the court stated.
The distinction is important because criminal cases involving multiple accused may include allegations of facilitating, enabling or otherwise participating in an offence. Whether the evidence is sufficient to establish the necessary elements of a charge remains the judicial process.
Why the Judgment Matters for Indian Criminal Law
The Delhi High Court’s ruling clarifies how gang rape provisions can be applied where the accused person has not actually participated in the physical conduct of the offence. The court also emphasizes the need to take into account the language of Section 70 BNS and common intention when making the decision on charges to be framed with regard to different people in the context of the gang rape.
The judgment also makes clear the legal question of whether charges are permissible and the legal question of whether an accused person is guilty. At the stage of framing charges, the court decides the case can proceed under the relevant legal provisions; the prosecution still has to prove its allegations without going through the legal process.
So far the High Court has rejected the woman’s plea and allowed cases framed by the trial court to stand. The case illustrates how judges interpret criminal codes when questions about participation, gender and responsibility for offences allegedly committed by a group are raised.
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