A woman cannot be prosecuted for rape or abetting its commission, as per statutory interpretation of relevant legal provisions.

ORAL ORDER

1. Learned advocate for the petitioners has not pressed this petition qua petitioner No.2. Accordingly, present petition stands disposed of as not pressed qua petitioner No.2. Rule discharged.

ORAL ORDER QUA PETITIONER NO.1

2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ”the Code”), the petitioner has prayed for quashing and setting aside FIR being C.R.No.11191020210187 registered with Vastrapur Police Station, for the offences punishable under Sections 376, 376(2)(n), 328, 506(2), 294(b) of the IPC, u/s 66E of the I.T. Act as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

3. Brief facts of the case are that in the month of March, 2020, the petitioner No.2 has developed friendship with the victim through facebook. That in the month of July 2020, the petitioner No.2 made video call to the victim and clicked obscene photos of the victim and threatened the complainant by making the photos viral on social media and under the threat, the petitioner No.2 made rape of the victim. Therefore, the present FIR is filed.

4. Learned advocate for the petitioner would submit that there is delay of about four months in lodging of the FIR and for that there is no satisfactory explanation. He would further submit that so far as the role of the petitioner No.1 is concerned, she is alleged to have acted as abettor and nothing more than that and therefore, the essential ingredients of sections 376 are not attracted against the petitioner No.1 being lady. To buttress his submission, learned advocate for the petitioner pressed into service judgment in case of Priya Patel Versus State Of Madhya Pradesh , 2006 (6) SCC 263. Upon such submission, he prays to allow the petition.

5. On the other hand, learned advocate for the complainant would submit that on reading of the FIR, the role of the petitioner is very much there in abetting the petitioner No.2 to commit the offence. Upon such circumstances, he prays to dismiss the petition.

6. Joining the hands with learned advocate for the complainant, learned APP prays to dismiss the petition.

7. Having heard learned advocates for the respective parties, what appears that the role of the petitioner is limited to the extent of abetting the petitioner No.2 and nothing more than that. Admittedly, the petitioner No.1 is a lady accused. Even considering the FIR on the face of it, it does not disclose offence of section 376 of the IPC so far as present petitioner No.1 is concerned. Hence, continuation of proceedings against the petitioner No.1 is abuse of process of law.

8. In Priya Patel (supra), the Hon’ble Apex Court, while holding that rape can be committed only by a man, held in para

8 as under:-

“8. A bare reading of Sec. 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Sec. 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape" shall be punished, etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section(2). That cannot make a woman guilty of committing rape. This