Woman Can Be Charged with Gang Rape Under BNS Section 70 for Common Intention: Delhi HC
- Statutes
- Bharatiya Nyaya Sanhita, 2023 — s.70
- Indian Penal Code, 1860 — s.376-D
- Protection of Children from Sexual Offences Act, 2012
- Source
- SCC Times
The Delhi High Court affirmed that a woman can be charged with gang rape under Section 70 of the Bharatiya Nyaya Sanhita (BNS) (formerly Section 376-D IPC) if she shares a common intention with other perpetrators, even though she cannot be the sole perpetrator. The Court held that the term "persons" in the provision is gender-neutral, dismissing a challenge to a charge order in a POCSO case.
Ratio Decidendi · Legal Principle Established
The term "persons" in Section 70 of the Bharatiya Nyaya Sanhita (BNS) (and its predecessor, Section 376-D of the Indian Penal Code) is gender-neutral. Consequently, a woman can be charged with the offence of gang rape if she acts in furtherance of a common intention with other individuals to commit rape, even though she cannot be the principal offender who directly commits the sexual penetration.
Practice & Procedural Impact for Advocates
Advocates should note that the scope of 'gang rape' extends to women who are accomplices or share common intention, not just direct perpetrators. Litigants facing such charges must prepare defenses considering the broader interpretation of 'persons' and 'common intention'. Counsel must confirm whether IPC or BNS applies based on the offence date.
Key Legal Takeaways
- 1Section 70 BNS (and 376-D IPC) is gender-neutral regarding accomplices in gang rape.
- 2A woman can be charged with gang rape if she shares common intention, even if she doesn't commit the direct act.
- 3The ruling clarifies the expansive interpretation of 'persons' in gang rape provisions.
The Legal Issue
The Delhi High Court addressed the interpretation of the term "persons" in the context of gang rape provisions, specifically Section 376-D of the Indian Penal Code, 1860 (IPC), which has been replaced by Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS). The core question was whether a woman could be charged with gang rape, given that the direct act of sexual penetration is typically committed by a male. The petitioner challenged an order on charge, arguing that a woman cannot be held liable for gang rape.
Court's Reasoning
The Delhi High Court, in dismissing the petition, held that the word "persons" in Section 70 BNS (and previously Section 376-D IPC) is gender-neutral. The Court reasoned that while a woman cannot be the direct perpetrator of rape involving penetration, she can certainly be an active participant or an abettor in a gang rape. If a woman forms part of a group or acts in furtherance of a common intention to have rape committed on a victim, she can be charged with the offence of gang rape. The Court emphasized that the provision targets the collective act of a group, and not solely the individual act of penetration. This interpretation aligns with the legislative intent to hold all individuals accountable who contribute to the commission of such a heinous crime, regardless of their gender.
Why It Matters
This ruling is significant as it clarifies the scope of liability for gang rape, ensuring that all individuals involved in the commission of the offence, including women who share a common intention, can be prosecuted. It reinforces the principle that criminal liability extends beyond the direct perpetrator to those who facilitate or conspire in the crime. For legal practitioners, this means that charges for gang rape can be framed against women who are found to have acted with common intention, even if they did not physically commit the act of penetration. This broadens the prosecutorial net and underscores the importance of investigating the roles of all individuals involved in such offences. Counsel must confirm whether the IPC or BNS applies based on the date of the alleged offence.