This judgment decides only the framing of charge: whether a woman can be charged with gang rape under Section 376D IPC/Section 70 BNS on a common-intention basis. It decides nothing on the guilt or innocence of the petitioners, which is for the trial court. It also expressly leaves open whether a woman alone can be charged with gang rape, and whether the word 'man' in the statutory definition of rape is gender-neutral.
- Case
- ANSXXX AND ANR v. State of NCT of Delhi AND ANR
- Court
- High Court of Delhi
- Decision
- Bench
- A. J. Bhambhani
- Judgment by
- A. J. Bhambhani
- Case numbers
- CRL.REV. P. 37/2025
- Outcome
- Criminal revision petition (CRL.REV. P. 37/2025) impugning the order on charge dated 17.01.2025: petition dismissed; the charge order is upheld. The trial proceeds.
Revision dismissed: gang-rape charge against a woman upheld on common-intention liability
On 15 October 2026, Justice A. J. Bhambhani of the High Court of Delhi dismissed Criminal Revision Petition No. 37 of 2025, upholding the order on charge dated 17 January 2025 passed by the Additional Sessions Judge (POCSO), North District, Rohini Courts, in FIR No. 0520 of 2024. The 45-page judgment answers the short question it framed at the outset: 'Can a woman be charged with the offence of gang rape under section 376D IPC/section 70 BNS?' The Court's answer is yes - on the basis of common intention.
The petitioners had pressed their challenge only on the ground that petitioner No. 1, a woman, cannot be charged with the offence of gang rape. The Court held there is no basis to restrict the word 'persons' in Section 70 of the Bharatiya Nyaya Sanhita to men, and that the provision's deeming fiction makes every person who constitutes a group or acts in furtherance of a common intention culpable for gang rape, regardless of gender. As a sequitur, the order on charge stands and the petition is dismissed.
The case: charges framed against the minor victim's mother
In her statement recorded under Section 183 BNSS on 4 October 2024, the victim stated that on 23 December 2023 petitioner No. 1 threatened to kill her if she did not have physical relations with petitioner No. 2, and that despite her protestations petitioner No. 1 forced her to do so, remaining present in the same room during the incidents. She said she was sexually assaulted multiple times between December 2023 and July 2024, that a video clip of the 23 December incident would be found on petitioner No. 1's mobile phone, and that she left home on 8 July 2024 when threatened again.
Upon completion of investigation, charges under the Protection of Children from Sexual Offences Act were added by chargesheet dated 27 November 2024, and by the impugned order dated 17 January 2025 the petitioners were charged for offences under Sections 70(2), 351(3) and 64(2)(m) of the BNS and Section 6 of the POCSO Act. Because the alleged offences span December 2023 to July 2024, they straddle the period when the IPC was in force and the period when the BNS was in force.
- Delhi High Court: ANSXXX AND ANR v. State of NCT of Delhi AND ANR, CRL.REV. P. 37/2025, judgment dated 15 October 2026 by A. J. Bhambhani J. (official judgment)Judgment paras 1-3, pp. 1-2 (FIR No. 0520/2024 dated 09.07.2024 at P.S. Bhalswa Dairy; chargesheet dated 27.11.2024 adding POCSO; impugned order dated 17.01.2025; charges under sections 70(2)/351(3)/64(2)(m) BNS and section 6 POCSO; offences alleged December 2023 to July 2024 straddling IPC and BNS periods); paras 10-11, pp. 3-4 (FIR at instance of petitioner No. 1, mother of the minor victim; victim's section 183 BNSS statement dated 04.10.2024: threat of 23.12.2023, forced physical relations with petitioner No. 2, petitioner No. 1 present in the room, multiple assaults December 2023-July 2024, video clip on petitioner No. 1's phone, victim left home 08.07.2024)
The petitioners' argument: only a man can commit rape, so only men can form a gang-rape 'group'
The petitioners' case, argued by Ms. Tanya Agarwal, was that a charge of gang rape is not tenable against petitioner No. 1 at all, since she is a woman. The legal proposition was stated thus: as per the definition of 'rape' in Section 63 BNS only a 'man' can commit the offence of rape, and therefore the reference in Section 70 BNS, which defines 'gang rape', to a 'group of persons' can only mean a group of men.
It was further argued that the question was no longer res integra, having been decided by the Supreme Court in Priya Patel v. State of Madhya Pradesh and State of Rajasthan v. Hemraj, which the petitioners read as settling that a woman cannot be prosecuted for gang rape. The Court appointed Mr. Rohan J. Alva as amicus curiae to assist on the question.
The ratio: 'persons' is gender-neutral, the 'or' is disjunctive, and the deeming fiction does the work
The Court gave three linked reasons. First, there is no rationale to restrict the word 'persons' in the phrase 'one or more persons constituting a group' to mean only a group of men; the word must be construed in its gender-neutral form, and the phrase 'acting in furtherance of a common intention' cannot be restricted to the common intention of men alone. The concept of common intention, as understood for Section 34 IPC and Section 3(5) BNS, does not require every co-accused to have individually committed each ingredient of the offence.
Second, the two phrases are separated not by a conjunctive 'and' but by a disjunctive 'or'. The Court called this significant: for 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. A woman who is not part of the group that commits the physical offence may yet have acted in furtherance of a common intention to have rape committed upon the victim.
Third, and most significantly, the phrase 'deemed to have committed the offence of rape' reflects the legislative intent that every person who constitutes a group or acts in furtherance of a common intention need not have individually committed rape. As a deeming fiction, Sections 376D IPC and 70 BNS create a juristic postulate: each such person is culpable for having committed the offence of gang rape. The inevitable conclusion, the Court held, is that though a person may not individually have committed the act of rape, they are deemed to have committed it within the meaning of the gang-rape provisions, and are therefore liable to be charged regardless of gender.
Priya Patel and Hemraj distinguished: the pre-2013 provision was punishment, not a standalone offence
The Court accepted the amicus's submission that Priya Patel and Hemraj, though holding that a woman could not be arrayed as an accused for gang rape under Section 376(2)(g) IPC, were decided in a markedly different context. Section 376(2)(g) IPC was only a punishment provision for an aggravated form of rape, not an independent and stand-alone offence: it had to be read with Section 375 IPC, which before the 2013 amendment defined rape as sexual intercourse by a man with a woman - and it was on the provisions as they then stood that the Supreme Court reached its conclusion.
By contrast, Section 376D IPC - introduced by the 2013 amendments - and the identical Section 70 BNS define gang rape as a distinct, standalone offence with its own deeming fiction. The Court also applied the amicus's reliance on Sundari Gautam - that under the POCSO Act any person regardless of gender who compels a child to suffer the offence is equally liable - to sustain the Section 6 POCSO charge against the petitioners in any case.
BANTHRY ANALYSISAnalysis: the paragraph 87 clarification - and the question the Court left alone
The judgment is careful about its own boundaries. Paragraph 87 clarifies that a woman alone cannot be charged with gang rape, since that would prima facie not conform to the statutory definition of rape as it appears even in the post-2013 Section 375 IPC and Section 63 BNS, as currently construed. The Court reiterated that it was not expressing any opinion on whether the word 'man' in those definitions is gender-neutral - a question it said may have to be visited in an appropriate case, especially given the expanded definition of rape, whose additional acts can equally be committed by a non-male offender.
The doctrinal picture that emerges is therefore a two-track one: the deeming fiction of Section 70 BNS extends gang-rape liability to anyone in the group or acting in furtherance of the common intention, regardless of gender - but the underlying definition of rape itself, and whether a woman can be a principal offender, remains untouched by this judgment. Students should also note the procedural posture: this is a revision against framing of charge, so the Court tests only whether a prima facie case for the charge exists, not whether the allegations are proved.
What the judgment does not decide
The judgment decides nothing on the guilt or innocence of the petitioners - that is for the trial court, before which the charges now stand. It decides nothing on whether a woman can be charged with gang rape as a sole offender, and nothing on whether the word 'man' in the statutory definition of rape is gender-neutral, both expressly left open. The Court's holding is confined to the charging question: that on the deeming fiction and common-intention structure of Section 376D IPC and Section 70 BNS, a woman who is part of the group or acts in furtherance of the common intention can be charged with gang rape.
READING PROMPTSQuestions for a closer reading
- The Court holds that the phrases 'one or more persons constituting a group' and 'acting in furtherance of a common intention' are separated by a disjunctive 'or'. Why does the disjunctive reading matter for the liability of a person who never physically committed the act, and how would a conjunctive reading have changed the outcome?
- The petitioners relied on Priya Patel and Hemraj to argue the question was already settled against charging a woman with gang rape. The Court distinguishes those decisions on the ground that they interpreted the pre-2013 Section 376(2)(g) IPC. What is the structural difference between that provision and Section 376D IPC/Section 70 BNS that makes the distinction work?
- Paragraph 87 clarifies that a woman alone cannot be charged with gang rape under the statutory definition of rape as currently construed. Reconcile this clarification with the Court's holding that a woman can be charged with gang rape on a common-intention basis - what is the doctrinal line being drawn?
