The Legal Issue
The Delhi High Court addressed the question of whether a woman can be charged with the offence of gang rape under the newly enacted Bharatiya Nyaya Sanhita (BNS), 2023. This issue arises in the context of the BNS making gang rape a distinct and standalone offence, which differs from its treatment under the erstwhile Indian Penal Code (IPC), 1860. The Court considered whether the term 'man' in Section 63 of the BNS could be interpreted in a gender-neutral manner or if a woman's involvement in a gang rape could only be through abetment or conspiracy.
Court's Reasoning
The Delhi High Court distinguished the present legal landscape under the BNS from the position under the IPC. The Bench noted that under the IPC, gang rape was typically covered under Section 376D, which specifically referred to 'men'. Previous judgments, such as *Priya Patel v. State of M.P.* and *Hemraj v. State of M.P.*, had interpreted the IPC provisions in a way that primarily focused on male perpetrators. However, the Court observed that Section 63 of the BNS now explicitly defines gang rape as a standalone offence. While acknowledging that a woman alone cannot be charged with gang rape, the Court clarified that if a woman acts in concert with men in committing the offence, she can indeed be charged under Section 63 BNS. The Court, however, left open the broader question of whether the term 'man' in Section 63 BNS should be interpreted as gender-neutral, indicating that this aspect might require further judicial consideration.
Why It Matters
This decision is significant as it clarifies the applicability of the gang rape provisions under the Bharatiya Nyaya Sanhita, 2023, particularly concerning the involvement of women. It signals a departure from previous interpretations under the IPC, where the direct liability of women for gang rape was often debated. For advocates, this means a broader understanding of potential accused persons in gang rape cases, extending beyond only male perpetrators to include women who act in concert. Litigants must be aware that the BNS treats gang rape as a distinct offence, which may influence charging and prosecution strategies. The Court's decision to leave open the gender-neutrality of 'man' in Section 63 BNS suggests that this area may see further legal development and argument. Counsel should confirm the applicable criminal-law regime based on the offence date (IPC for offences before July 1, 2024, BNS for offences on or after July 1, 2024).