Author: Chandramani Bhaskar, ILS Law College, Pune
ABSTRACT
In Priya Patel v. State of M.P., (2006) 6 SCC 263, the Supreme Court held that a woman could not be prosecuted for gang rape under Section 376(2)(g) of the Indian Penal Code, 1860 (IPC), as Section 375 then defined rape as an offence that could be committed by a man. The Court, however, left open the possibility of liability for abetment. The legal position subsequently changed with the Criminal Law (Amendment) Act, 2013, which introduced Section 376-D and recast gang rape as a distinct offence involving “one or more persons”. In Suneeta Pandey v. State of U.P., 2023 SCC OnLine All 44, the Allahabad High Court distinguished Priya Patel and held that a woman who facilitates gang rape may be prosecuted under Section 376-D IPC. With the IPC now repealed and the Bharatiya Nyaya Sanhita, 2023 (BNS) in force, Section 70 governs gang rape. This article traces that development and considers whether Priya Patel continues to control the issue under the present statutory framework.
INTRODUCTION
The question whether a woman can be prosecuted for gang rape exposes an important distinction between the legal definition of rape and statutory rules of joint liability. Priya Patel remains the starting point, but it cannot be read without considering the legislative changes that followed it.
THE PRIYA PATEL RULING
The case arose from an incident involving Bhanu Pratap Patel, who allegedly raped the prosecutrix at his house. During the assault, his wife, Priya Patel, arrived. When the victim sought help, Priya allegedly slapped her, closed the door and left. Bhanu Pratap was charged under Sections 323 and 376 IPC, while Priya was charged under Sections 323 and 376(2)(g) IPC for gang rape.
The Madhya Pradesh High Court upheld the charge, reasoning that Explanation I to Section 376(2) could operate where a woman facilitated the rape. On appeal, the Supreme Court took a contrary view and set that finding aside.
The Court examined the statutory scheme then in force. Under Section 375, only a man could be said to commit the offence of rape. Section 376(2)(g), together with Explanation I, provided that where a woman was raped by persons acting in furtherance of their common intention, each person would be deemed to have committed gang rape. The Supreme Court held that the deeming provision could not transform a woman into a person capable of committing rape when Section 375 itself did not recognise her as such. It further observed that “common intention” under Section 34 had to relate to the intention to commit rape. Accordingly, Priya Patel could not be prosecuted under Section 376(2)(g). The Court expressly left open whether she could be proceeded against for abetment.1
THE 2013 AMENDMENT: A CHANGE IN THE STATUTORY FRAMEWORK
The most important development after Priya Patel was the Criminal Law (Amendment) Act, 2013. It retained the gendered formulation of rape in Section 375 but introduced Section 376-D as a separate provision dealing specifically with gang rape.2
Section 376-D provided that where a woman was raped by one or more persons constituting a group or acting in furtherance of a common intention, each such person would be deemed to have committed the offence of rape. The provision therefore differed materially from the pre-2013 Explanation to Section 376(2)(g). The expression “one or more persons” was not confined by gender.
This distinction is crucial. Priya Patel interpreted the earlier statutory structure; it should not automatically be treated as a universal rule governing the amended provision.
SUNEETA PANDEY: THE POST-2013 POSITION
The issue was directly reconsidered by the Allahabad High Court in Suneeta Pandey v. State of U.P., 2023 SCC OnLine All 44. The applicant, a woman, had been summoned to face trial under Section 376-D IPC, and she relied on Priya Patel to argue that a woman could not be prosecuted for gang rape.3
The High Court rejected the argument. It acknowledged that a woman could not herself commit rape within Section 375, but distinguished Priya Patel on the basis of the amended Section 376-D. According to the Court, “person” in Section 376-D was not gender-specific, and a woman who facilitated the rape of a victim by a group could be prosecuted for gang rape where the statutory requirements of joint liability were satisfied.4
Suneeta Pandey is a High Court decision, not a Supreme Court overruling of Priya Patel. Its significance is therefore interpretive rather than binding nationwide precedent. Nevertheless, it demonstrates that the 2013 amendment materially altered the legal question.
THE POSITION UNDER THE BHARATIYA NYAYA SANHITA, 2023
The IPC was repealed by Section 358 of the BNS, subject to savings for offences and proceedings arising under the repealed Code. For offences committed under the new regime, the relevant provisions are Sections 63 and 70 BNS.5
Section 63 retains a gender-specific formulation of rape by stating that “a man” is said to commit rape. Section 70, however, separately defines gang rape. It provides that 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.6
The textual similarity between Section 70 BNS and post-2013 Section 376-D IPC makes the question particularly significant. The BNS provision uses “persons” rather than “men” and establishes a separate statutory basis for joint liability. On that wording, the reasoning adopted by the Allahabad High Court in Suneeta Pandey may provide a persuasive interpretive approach.
However, it would be premature to state that Priya Patel has been conclusively overruled under the BNS. The Supreme Court has not, on the authorities considered here, authoritatively determined the precise interaction between Sections 63 and 70 BNS in a case involving a woman accused of facilitating gang rape. The better position is therefore to distinguish Priya Patel’s interpretation of the pre-2013 IPC from the current statutory text while recognising that the ultimate BNS question remains open to authoritative judicial determination.
ABETMENT REMAINS DISTINCT
Priya Patel should also not be understood as creating immunity for women who assist sexual offences. The Supreme Court expressly left open the possibility of prosecution for abetment. Under the general law of abetment, liability may arise from instigation, conspiracy or intentional aid, provided the statutory requirements are established. The precise charge must therefore follow the conduct proved and the statutory provision invoked.7
CONCLUSION
Priya Patel remains an important Supreme Court authority, but its proposition must be stated with precision. It held that, under the pre-2013 IPC framework, a woman could not be prosecuted for gang rape under Section 376(2)(g), because the deeming provision could not expand the gendered definition of rape in Section 375.
The 2013 amendment changed that framework by introducing Section 376-D as a distinct gang-rape offence. Suneeta Pandey subsequently recognised this distinction and permitted prosecution of a woman under Section 376-D where the statutory requirements were satisfied. The BNS has now replaced the IPC and retains a separate gang-rape provision in Section 70 using the expression “persons”.
Accordingly, the strongest contemporary reading is not that “women cannot be charged with gang rape”, but that the answer depends on the statutory framework governing the offence. Priya Patel remains controlling for the pre-2013 provision it interpreted; its automatic extension to Section 376-D IPC or Section 70 BNS is not justified without addressing the changed statutory language. The continuing significance of Priya Patel therefore lies not only in its answer, but in its broader lesson: a deeming provision must be interpreted within the statutory framework from which it derives.
The Supreme Court held that, under the pre-2013 IPC framework, a woman could not be prosecuted for gang rape under Section 376(2)(g), because Section 375 defined rape as an offence committed by a man. The Court nevertheless left open the possibility of prosecution for abetment.1
1. What did the Supreme Court hold in Priya Patel?
Yes. The Criminal Law (Amendment) Act, 2013 introduced Section 376-D as a distinct gang-rape provision. Unlike the earlier provision, it referred to “one or more persons”, creating a materially different statutory framework.2
2. Did the 2013 amendment change the position?
The Allahabad High Court distinguished Priya Patel and held that a woman could be prosecuted under Section 376-D IPC where she facilitated gang rape and the statutory requirements of joint liability were satisfied. The decision is a High Court authority and did not overrule the Supreme Court.3
3. What did Suneeta Pandey decide?
Sections 63 and 70 BNS now govern rape and gang rape respectively. Section 70 uses the expression “persons”. Whether Priya Patel controls the interpretation of Section 70 has not been conclusively settled by the Supreme Court and should therefore be treated as an open interpretive question.5, 6
4. What is the position under the BNS?
FREQUENTLY ASKED QUESTIONS
1. What did the Supreme Court hold in Priya Patel?
It held that, under the pre-2013 IPC framework, a woman could not be prosecuted for gang rape under Section 376(2)(g), because Section 375 defined rape as an offence committed by a man. The Court left open prosecution for abetment.1
2. Did the 2013 amendment change the position?
Yes. The 2013 amendment introduced Section 376-D as a distinct gang-rape provision referring to “one or more persons”, materially changing the statutory framework.2
3. What did Suneeta Pandey decide?
The Allahabad High Court distinguished Priya Patel and held that a woman could be prosecuted under Section 376-D where she facilitated gang rape and the requirements of joint liability were satisfied. It did not overrule the Supreme Court.3
4. What is the position under the BNS?
Sections 63 and 70 BNS now govern rape and gang rape. Section 70 uses “persons”. Whether Priya Patel controls Section 70 has not been conclusively settled by the Supreme Court and remains an interpretive question.5, 6
.
Page
