The Delhi High Court has affirmed that a woman can be charged with the offence of gang rape under both the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS), even if she did not personally engage in the physical act of sexual assault. In a decisive judgment, Justice A. J. Bhambhani held that the legislative framework for gang rape creates a substantive group offence that does not limit culpability to male perpetrators, provided the accused acted in furtherance of a common intention to facilitate the crime.

The court’s decision stems from a criminal revision petition challenging an order on charge issued by an Additional Sessions Judge (POCSO) in January 2025. The petitioners—a mother and her co-accused—were charged in connection with an FIR registered in July 2024 at the Bhalswa Dairy police station. The prosecution alleged that the mother had repeatedly threatened her minor daughter and forced her to engage in sexual relations with the other accused over several months between December 2023 and July 2024. The victim claimed that her mother remained present in the room during the assaults, orchestrating the abuse under threat of violence.

During the proceedings, the petitioners argued that the charge of gang rape was legally unsustainable against the woman. Relying on the definition of rape under Section 63 of the BNS—and the corresponding Section 375 of the IPC—they contended that since the statute specifies "a man" as the perpetrator, a woman could not, by definition, be charged with an offence rooted in that provision. Counsel for the petitioners further cited Supreme Court rulings from 2006 and 2009, asserting that these precedents prohibited the prosecution of women for gang rape.

Justice Bhambhani, however, rejected this argument after a detailed analysis of legislative shifts. The court observed that the Criminal Law (Amendment) Act, 2013, significantly altered the legal landscape by expanding the definition of rape to include non-penile sexual acts and, crucially, by establishing gang rape as an independent, stand-alone offence under Section 376D of the IPC. This structural change meant that gang rape was no longer merely a punishment-enhancement clause attached to the parent rape provision.

"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," Justice Bhambhani wrote in the judgment. By framing gang rape as a distinct provision, the legislature shifted the focus from the individual physical act of rape to the collective behaviour of a group operating with a shared criminal objective.

The court emphasized that the language used in Section 70 of the BNS , which governs gang rape, refers to "one or more persons constituting a group," a phrase that must be read in a gender-neutral manner. According to the court, the legal fiction of " deemed " commission of rape serves as a mechanism to fasten responsibility on all members of a group who participate in the commission of the offence through common intention .

Addressing the petitioners' reliance on older Supreme Court rulings, the court noted that those decisions were delivered under a different statutory framework where gang rape was treated as an aggravated form of rape linked directly to the parent definition of a "man" committing the act. With the introduction of Section 376D IPC and now Section 70 BNS, the court determined that the legal basis for charging women had evolved.

"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," the court observed. This interpretation implies that a woman who facilitates or ensures the commission of the act by a group can be held as liable as those who physically perform the assault, as the law focuses on the shared intent and the unity of action rather than the specific physical contribution of each individual.

While clarifying the scope of group liability , the court was careful to define the limitations of its ruling. It explicitly stated that it was not deciding whether a woman could independently commit the crime of rape under the general definition provided in the BNS or the IPC. "By way of this judgment, this court is not expressing any opinion on whether a woman can commit rape," Justice Bhambhani clarified, noting that the case before it focused specifically on the group-based offence of gang rape . The court further noted that a woman acting in isolation, without the involvement of a group or common intention , would not fall under the statutory definition of gang rape as currently interpreted.

Beyond the gang rape charges, the court also upheld the trial court’s decision to charge the petitioners under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. Relying on its own previous ruling in the matter of Sundari Gautam vs. State of NCT of Delhi , the court reiterated that the provisions of the POCSO Act are gender-neutral and intended to cover all offenders who subject children to sexual assault, regardless of the gender of the perpetrator.

The court ultimately dismissed the revision petition, affirming the trial court's order dated January 17, 2025. The case will now proceed to trial on the basis of the sustained charges, which include Section 70(2), 351(3), and 64(2)(m) of the BNS, alongside the POCSO Act provisions. The judgment provides significant clarity on the application of group liability in cases of sexual violence, establishing that facilitators who share a common criminal intention are equally amenable to the law’s most severe penalties, regardless of their gender.