Introduction
The Delhi High Court has held that a woman can face charges of gang rape even if she has not personally committed the physical act of rape. In its October 15, 2026, decision, the Court interpreted Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 376D of the Indian Penal Code, 1860 (IPC) to hold that the expression “persons” cannot be restricted to men when determining liability for gang rape. Justice Anup Jairam Bhambhani clarified that a person who acts in furtherance of a common intention to have rape committed may face charges even if that person does not physically commit the act. However, the Court expressly left open the separate question of whether a woman can independently commit rape under Section 63 BNS or Section 375 IPC.
What Was The Case Before The Delhi High Court?
The case arose from allegations involving a minor girl and two accused persons, including the girl’s mother. The allegations included that the woman had threatened her daughter and forced her to have sexual relations with another accused person. The prosecution alleged that the woman had also been present during the incidents of sexual assault.
The woman challenged the trial court’s order framing charges against her. She argued that she could not be charged with gang rape because the statutory definition of rape identifies a man as the perpetrator.
The Court rejected this argument and dismissed the petition. It upheld the trial court’s order dated January 17, 2025, which framed charges under relevant provisions of the BNS and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The decision concerned the framing of charges and did not amount to a final conviction.
What Does Section 70 Of The BNS Say About Gang Rape?
Section 70 of the Bharatiya Nyaya Sanhita, 2023 deals with gang rape. It provides that where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons is deemed to have committed the offence of rape.
Under Section 70(1), gang rape involving an adult woman is punishable with rigorous imprisonment for at least 20 years, which may extend to imprisonment for the remainder of the offender’s natural life, along with a fine.
Under Section 70(2), where the victim is below 18 years of age, the punishment is imprisonment for the remainder of the offender’s natural life and a fine, or death.
The provision uses the expression “one or more persons constituting a group or acting in furtherance of a common intention.” The Delhi High Court held that the word “persons” cannot be interpreted as referring exclusively to men. The provision also does not require every person acting in furtherance of the common intention to have physically committed the act of rape.
Why Did The Court Interpret The Word “Persons” In A Gender-Neutral Manner?
The Court examined the development of the law on gang rape following the Criminal Law (Amendment) Act, 2013. The amendment introduced Section 376D into the IPC as a separate, substantive offence of gang rape. The corresponding provision is now contained in Section 70 of the BNS.
The Court explained that gang rape must be examined under its own statutory provision rather than limiting its interpretation entirely to the definition of rape under Section 375 IPC or Section 63 BNS.
It also observed that the phrase “acting in furtherance of a common intention” is not restricted to men. A person may contribute to the commission of gang rape by participating in a common plan to have the offence committed, even if that person does not physically perform the act.
Accordingly, a woman who allegedly facilitates the offence or acts in furtherance of the common intention may be charged under the gang rape provision, provided the necessary legal requirements are satisfied.
Can A Woman Be Charged With Gang Rape If She Does Not Physically Commit The Act?
According to the Delhi High Court, physical participation in the act of rape is not necessary for every accused charged under the gang rape provision.
For example, a person may allegedly threaten a victim, facilitate the assault or act in furtherance of a common intention to have the offence committed. If the prosecution can establish the necessary legal ingredients, that person’s role may attract liability under Section 70 BNS.
However, mere presence at the scene or an allegation of involvement does not automatically establish guilt. The prosecution must prove the relevant facts and the accused person’s legally significant role in the offence. The Court’s ruling establishes that gender alone cannot prevent a person from being charged under Section 70 when the statutory requirements are otherwise met.
The Court also clarified that a woman acting alone cannot be charged with gang rape because the offence, as currently defined, requires the involvement of a group or persons acting in furtherance of a common intention.
How Does Section 6 Of The POCSO Act Apply To The Case?
The Court also upheld the charge under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
Section 6 prescribes punishment for aggravated penetrative sexual assault against a child. The POCSO Act protects children below 18 years of age from sexual offences and does not restrict criminal liability under its provisions to male offenders.
The Court relied on its earlier decision concerning the gender-neutral application of the offence of penetrative sexual assault under the POCSO Act. It found no reason to interfere with the charge under Section 6 in the case before it.
What Is The Legal Significance Of This Judgment?
The judgment clarifies that a woman cannot automatically avoid a gang rape charge merely because she did not physically commit the act of rape. By interpreting the word “persons” in Section 70 BNS without restricting it to men, the Court recognised that an alleged participant who acts in furtherance of a common intention may face prosecution regardless of gender.
At the same time, the ruling maintains an important distinction between being charged with an offence and being convicted of it. The prosecution must establish the necessary elements of the offence, and the accused retains the right to defend the allegations during trial.
The Court did not decide whether a woman can independently commit rape under Section 63 BNS. That question remains separate from the issue decided in this case.
Conclusion
The Delhi High Court’s decision in ANSXXX and Another v. State of NCT of Delhi and Another clarifies the interpretation of Section 70 BNS and Section 376D IPC. A woman can be charged with gang rape if the allegations satisfy the statutory requirements, even if she did not physically commit the act of rape herself. The judgment focuses on participation in a group or acting in furtherance of a common intention, rather than restricting liability based solely on gender.
The decision also upholds the charge under Section 6 of the POCSO Act. However, it does not determine whether a woman can independently commit rape under Section 63 BNS. The ruling therefore clarifies the scope of gang rape liability while leaving that separate legal question open.
