“There is no basis to hold that a woman cannot be charged with the offence of gang rape,” the Delhi High Court has said, ruling that the offence stands on its own and that “persons” in the provision does not mean men alone.
New Delhi: A woman can be charged with gang rape under Section 376D of the Indian Penal Code and Section 70 of the Bharatiya Nyaya Sanhita, 2023 even if she did not personally commit the act, the Delhi High Court has held in upholding an order that framed charges, including gang rape, against her and another accused [Ans XXX and Another v. State of NCT of Delhi and Another].
Justice Anup Jairam Bhambhani dismissed the criminal revision petition, CRL.REV.P. 37/2025, on October 15, 2026, with Rohan J. Alva assisting the Court as amicus curiae. The charges are allegations that have not been tested at trial, the High Court has expressed no view on their merits, and the accused are presumed innocent.
A separate offence, and not only for men
Going through the legislative history, the Court held that gang rape under Section 376D IPC and Section 70 BNS is a substantive offence in itself and not just an aggravated form of rape. It then turned down the argument that the word “persons” can only mean men:
there is no basis to hold that a woman cannot be charged with the offence of gang rape
The limbs of the provision are joined by a disjunctive “or” and not a conjunctive “and”, the Court noted. Every person in the group, therefore, need not have individually committed rape; each is deemed to have committed it for the purposes of Section 376D IPC and Section 70 BNS.
The charges and the woman’s objection
The revision petition was directed against an order on charge dated January 17, 2025, passed by the Additional Sessions Judge (POCSO), North District, Rohini Courts. That order framed charges under Sections 70(2), 351(3) and 64(2)(m) of the Bharatiya Nyaya Sanhita and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The FIR was registered under Section 137(2) BNS, and the period alleged straddles the IPC and BNS regimes. Names and details that could identify the complainant are not reported here.
The woman argued that, since the statutory definition of rape names a “man” as the perpetrator, she could not be charged with gang rape. The Court put the question this way: can a “woman” be charged with gang rape under Section 376D IPC or Section 70 BNS?
There is an older ruling on the point. In Priya Patel v. State of Madhya Pradesh (2006), the Supreme Court held that rape can be committed only by a man, that the words “in furtherance of their common intention” in the gang rape provision refer to an intention to commit rape, and that a woman could not be prosecuted under what was then Section 376(2)(g). It left open whether a charge of abetment would lie. The Delhi High Court distinguished that decision, along with Hemraj.
Questions the Court did not decide
The Court clarified that it was giving no opinion on whether a woman can herself commit rape, and it did not decide whether the word “man” in Section 63 BNS is gender-neutral. It also observed that a woman alone cannot be charged with gang rape, a position it said may need revisiting in an appropriate case.
Separately, the POCSO charge was sustained, with the Court relying on an earlier Delhi High Court decision, Sundari Gautam, which reads penetrative sexual assault under that Act in a gender-neutral way. With that, the order on charge was upheld and the petition dismissed.
What changes at the framing stage
By treating gang rape as its own offence and reading the group-liability language without a gender limit, the ruling departs from the route taken by the Supreme Court in 2006. For trial courts, it means that a woman alleged to have shared the common intention in a group offence can be made to face a gang rape charge when charges are framed.
Whether a woman can be the principal offender of rape, the question the Court expressly reserved, is for a later case. As for the allegations in this one, the trial will test them.
Case Title: Ans XXX and Another v. State of NCT of Delhi and Another [CRL.REV.P. 37/2025 and CRL.M.A. 2891/2025]
Bench: Justice Anup Jairam Bhambhani, Delhi High Court
Date of Order: October 15, 2026
Appearances: Tanya Agarwal with Ritu, Akshay Singhal and Vishal M. for the petitioners; Rohan J. Alva with Anant Sanghi as Amicus Curiae; Digam Singh Dagar, APP, with SI Naresh Kumar for the State
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