While ruling most decisively on a very significant legal topic with far reaching legal consequences, the Allahabad High Court has in a most learned, laudable, landmark and latest judgment titled Suneeta Pandey vs State of U.P. And Another in Application u/s 482 No. – 39234 of 2022 and cited in 2023 LiveLaw (AB) 57 that was reserved on February 8 and then finally pronounced on February 13, 2023 held clearly, cogently and convincingly that a woman cannot commit the offence of rape but if she facilitates the act of rape with a group of people then she may be prosecuted for gang rape under Section 376D of IPC in view of the amended provisions.

We need to note that while perusing the provisions of Sections 375 and 376 of IPC (as amended by Act 13 of 2013 of the Indian Penal Code, 1860), the Single Judge Bench of Hon’ble Mr Justice Shekhar Kumar Yadav rejected the argument that a woman cannot be prosecuted for the alleged commission of the offence of gang rape. It must also be noted that the Court further observed that though it is clear by the non-ambiguous language of Section 375 of the IPC that a woman can’t commit rape as the Section specifically states that the act of rape can only be done by a ‘man’ and not by any woman. But what is extremely important is that the Court added that the same is not the case with Section 376D (Gang Rape). The Court thus dismissed the plea!

At the very outset, the Single Judge Bench of Hon’ble Mr Justice Shekhar Kumar Yadav of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 1 that:
Heard Sri Ravindra Prakash Srivastava, learned counsel for the applicant and Sri R.P. Mishra, learned A.G.A. for the State as well as perused the record.

To put things in perspective, the Bench envisages in para 2 that:
The present application has been filed by the applicant- Suneeta Pandey for quashing of the impugned order dated 03.12.2018, whereby the applicant has been summoned to face the trial u/s 376-D, 212 IPC in exercise of power conferred under Section 319 Cr.P.C. as well as entire proceedings of Special Criminal (Sexual) Case No.08 of 2016 (State Vs. Fanindra Mani Ojha alias Dablu and others) arising out of Case Crime No.874 of 2015, under section 376-D & 212 I.P.C., Police StationKotwali Bansi, District- Siddharth Nagar, pending in the court of Additional District and Sessions Judge- Ist, Siddharth Nagar with a further prayer to stay the further proceedings of the aforesaid case.

As we see, the Bench states in para 3 that:
As per F.I.R., the incident took place on 24.06.2015 and the F.I.R. was lodged against unknown persons on 28.07.2015 bearing Case Crime No. 874 of 2015, under Sections 363 and 366 I.P.C. alleging therein that someone has enticed away the daughter of the informant aged about 15 years and took her with him.

While dwelling on the order which is the subject matter of challenge the Bench then mentions in para 4 that:
Statement of the victim has been recorded under Section 161 and 164 Cr.P.C. The victim in her statement recorded under Section 164 Cr.P.C. has stated that applicant was involved in the alleged incident but the applicant was not named in the charge sheet. Thereafter, opposite party no.2 filed an application under Section 319 Cr.P.C. for summoning the applicant and the court below vide order dated 03.12.2018 has summoned the applicant to face trial for the offence under Sections 376- D and 212 Cr.P.C. It is this order which is subject matter of challenge before this Court.

Be it noted, the Bench notes in para 8 stating that:
I have considered the submission made by learned counsel for the applicant and the provisions of Section 319 Cr.P.C. and have arrived at a conclusion that no interference is called for in the impugned order. The scope and ambit of Section 319 of the Code have been elucidated in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 by the Hon’ble Apex Court. It has been held that, all that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, the person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. The ratio laid down by the Supreme Court in Hardeep Singh’s case has been explained by the Hon’ble Apex Court in the case Manjeet Singh Vs State of Haryana and others, (2021) SCC Online SC 632. The Supreme Court after noticing its subsequent judgements on the issue, summarized the scope and ambit of the powers of the Court under Section 319 Cr.P.C. and has held that it is only the material collected by the court during the course of inquiry or trial and not the material collected by the investigating agency during the investigation of the case which can be used, while arraigning an additional accused. The Supreme Court has made it clear that the word evidence appearing in Section 319 Cr.P.C. means only such evidence as is made before the court in relation to statements and in relation to the documents which can be used by the court for unveiling all facts, other than the material collected during investigation. Of course, the evidence would also include the evidence led during the trial of the case after framing of charges. It is also laid down that besides the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 of the Cr.P.C.

To be sure, the Bench then propounds in para 9 that:
So far as the argument of learned counsel for the applicant that a woman cannot commit rape and, therefore, she cannot be prosecuted for gang rape is not correct after going through the amended provisions of Section 375 to 376E IPC by Act 13 of 2013 of the Indian Penal Code, 1860.

For sake of clarity, the Bench concedes and clarifies in para 10 observing that, The case of Priya Patel (Supra), was a case of gang rape, where the wife of the appellant facilitated commission of gang rape within the meaning of Section 376(2)(g) IPC. After elaborate discussion on the provisions under Sectin 375 and 376 IPC, it was held therein, amongst other, that a woman cannot be prosecuted for alleged commission of offence of gang rape.

Most significantly and most forthrightly, the Bench then minces no words to mandate in para 11 holding that:
However, going through the amended provisions of Section 375 IPC & 376 IPC, the question, whether a female can commit the offence of rape is itself clear by the non-ambiguous language of section 375 of IPC which specifically states that the act of rape can only be done by a ‘man’ and not by any woman. Therefore, a woman cannot commit rape.

But looking through again the amended provision of Section 376-D IPC, which is a distinct and separate offence of Gang Rape-according to which:
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 and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.

Thus, from the language used in Section 376-D IPC, it is seen that in order to establish an offence under Section 376-D IPC, the prosecution has to adduce evidence to indicate that one or more persons had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that victim had been raped by one or more of them. In other words this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action.

In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence. The term person used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines ‘person’ as it includes any company or association or body of persons whether incorporated or not. The word person is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as an individual human being or a man, woman, or child; and, secondly, as the living body of a human being. As such, a women cannot commit the offense of rape but if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions. Unlike man, a woman can also be held guilty of sexual offences. A woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of person.

Finally, the Bench concludes by holding in para 12 that:
Keeping in view of the aforesaid facts and law laid down by the Apex Court, I find no scope for interference in the impugned order passed by the trial court at this stage. The application has no force and is accordingly dismissed.

All told, it is thus quite ostensible that the Allahabad High Court has candidly conceded that a woman cannot commit the offence of rape. But it has also added a caveat that if she facilitated the act of rape with a group of people then she may be prosecuted for gang rape in view of the amended provisions of Act 13 of 2013 of the Indian Penal Code, 1860 as mentioned above. No denying it. Of course, all the lower courts and so also all the High Courts and even the Apex Court too must also definitely pay heed in similar such cases to what the Allahabad High Court has held so very elegantly, eloquently and effectively in this leading case!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh