Under the classical understanding of Indian rape law, only a man can commit rape. Does it follow that only men can be charged with gang rape? In a criminal revision decided on 15 October 2026 — Crl. Rev. P. 37/2025, reported with anonymised parties to protect the minor victim — the Delhi High Court held that it does not. Justice Anup Jairam Bhambhani ruled that the gang rape provision, Section 70 of the Bharatiya Nyaya Sanhita, 2023 (corresponding to Section 376D IPC), is a standalone deeming offence that fastens liability on every person who forms part of the group or acts in furtherance of the common intention — including a woman.
From a kidnapping FIR to POCSO charges
The FIR was registered in July 2024 at PS Bhalswa Dairy — lodged, remarkably, by the first petitioner herself, the mother of the minor victim, alleging kidnapping. The investigation inverted the narrative. In her statement under Section 183 of the BNSS, the victim alleged that between December 2023 and July 2024 her mother had coerced her into sexual relations with the second petitioner and was present during the assaults, and that a recording existed on the mother’s phone. The chargesheet followed in November 2024, and in January 2025 the trial court framed charges under Sections 70(2), 351(3) and 64(2)(m) of the BNS and Section 6 of the POCSO Act against both.
The question of law
The petitioners’ challenge rested on a proposition with respectable ancestry: rape under Section 63 BNS — like Section 375 IPC before it — can be committed only by a man; therefore, they argued, the “group of persons” contemplated by the gang rape provision can only be a group of men, and a woman cannot be charged. They invoked the Supreme Court’s decisions in Priya Patel and Hemraj.
The amicus curiae appointed by the Court offered the counter-architecture. After the Criminal Law (Amendment) Act, 2013, gang rape ceased to be an explanation appended to the rape provision and became a standalone offence — Section 376D IPC, now Section 70 BNS: 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 shall be deemed to have committed the offence of rape. Priya Patel and Hemraj, decided under the pre-2013 text, do not control the amended scheme.
What the Court held — and what it did not
There is no basis to hold that a woman cannot be charged with gang rape under Section 70 BNS or Section 376D IPC. The deeming provision creates a standalone offence reaching all who form the group or act in furtherance of the common intention, regardless of gender.
A woman alone cannot be charged with gang rape: the group’s act must still involve rape as defined in Section 63 BNS, which — as currently construed — requires a male principal.
Whether the word “man” in Section 63 could ever be read gender-neutrally was expressly not decided, and the Court noted the broader question may be revisited in an appropriate case.
The Section 6 POCSO charge against the mother was sustained on the strength of Sundari Gautam, which reads the offence of penetrative sexual assault as gender-neutral.
On that footing the charge order of 17 January 2025 was upheld and the revision dismissed.
Why the decision matters
Prosecutions arising from intra-family sexual abuse frequently allege facilitation by an adult woman of the household — procuring, coercing, standing guard. Before this ruling, defence challenges in Delhi could lean on Priya Patel to argue that no gang rape charge could touch a woman at all, leaving only abetment. The judgment closes that route for the post-2013 framework: participation in the group act, with common intention, is itself enough for the principal charge. Combined with the gender-neutral reach of the POCSO Act — whose Section 6 carries a minimum of twenty years’ rigorous imprisonment — the charge-stage exposure of facilitators has materially changed.
The ruling operates at the stage of charge: it decides what the accused must answer at trial, not guilt. The allegations remain to be proved by evidence, and the identity of the minor victim remains protected under Section 23 of the POCSO Act and Section 72 of the BNS.
Frequently Asked Questions
What were the allegations?
The FIR, lodged in July 2024 at PS Bhalswa Dairy initially as a kidnapping case, transformed after investigation. In her statement under Section 183 BNSS, the minor victim alleged that her mother coerced her into sexual relations with a man between December 2023 and July 2024 and was present during the assaults. Charges were framed in January 2025 under Sections 70(2), 351(3) and 64(2)(m) BNS and Section 6 of the POCSO Act against both accused.
Did the Court hold that a woman can commit rape?
No — the Court expressly declined to decide whether the word “man” in Section 63 BNS could be read as gender-neutral. What it held is narrower: gang rape under Section 70 is a distinct, standalone offence created by a deeming provision, so a woman who is part of the group or acts in furtherance of its common intention can be charged, even though she cannot herself commit rape as defined in Section 63.
What about the earlier Supreme Court rulings in Priya Patel?
Priya Patel and Hemraj were decided under the pre-2013 statutory framework, where gang rape was an explanation to Section 376 rather than a standalone offence. The Court, assisted by an amicus curiae, reasoned that the post-2013 architecture — carried into Section 70 BNS — changed the structure, so those precedents do not conclude the question. It also clarified that a woman alone cannot be charged with gang rape, since the group must still involve the offence of rape as defined.
Why was the POCSO charge sustained against the mother?
Following the reasoning in Sundari Gautam, the Court treated the offence of penetrative sexual assault under the POCSO Act as gender-neutral in its reach. The charge under Section 6 (aggravated penetrative sexual assault) against the mother was accordingly sustained, and the revision against the charge order was dismissed.