Woman facilitating rape can be prosecuted for 'gang rape': Allahabad HC

The Allahabad High Court has observed that "no doubt a woman cannot commit the offence of rape but if she facilitates the act then she can be prosecuted for the offence of 'gang rape' under section 376D of Indian Penal Code (IPC) in view of the amended provisions".

Elaborating the provisions of section 375 (rape) and 376 (punishment for rape) of the IPC relating to the offence of rape, as amended in the year 2013, Justice Shekhar Kumar Yadav rejected the plea that a woman cannot be prosecuted for the alleged commission of the offence of gang rape.

With these observations, the court dismissed an application filed under section 482 (inherent powers of high court) of criminal procedure code (CrPC) filed by one Sunita Pandey, who had challenged a summoning order passed by the additional district and sessions judge, Siddharth Nagar, to face trial under sections 376D (gang rape), 212 (harbouring offender) of IPC in connection with the alleged rape case of a 15-year-old girl.

"A woman can not commit the offence 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," observed the court while rejecting the plea of the woman applicant.

Taking into account the facts of the case, the court, at the outset, noted that the argument that a woman cannot be prosecuted for gang rape is not correct as per the amended provisions of sections related to rape, which relates to the offence of rape.

The court observed that though it is clear by the non-ambiguous language of section 375 of IPC that a woman cannot commit rape as the section specifically states that the act of rape can only be done by a 'man' and not by 'a woman', the same is not the case with section 376D (gang rape) of IPC.

The incident took place in June 2015 and FIR was lodged by the father of the girl against unknown persons in July 2015 under sections 363 (punishment for kidnapping) and 366 (kidnapping, abduction or inducing woman to compel her marriage, etc.) IPC, alleging therein that someone had enticed his daughter aged about 15 years, and took her with him.

In her statement before the court under section 164 of the Criminal Procedure Code, the victim stated that the applicant was involved in the alleged incident. However, the applicant was not named in the charge sheet.

Thereafter, the father of the victim filed an application under section 319 CrPC for summoning the applicant and the court below allowed the said plea.