GANGRAPE (376D IPC) FROM THE PERSPECTIVE OF SUNEETA PANDEY CASE   INTRODUCTION: In a highly significant legal ruling that carries profound implications, the Allahabad High Court recently delivered a momentous judgment in the case of Suneeta Pandey vs State of U.P. And Another (Application u/s 482 No. – 39234 of 2022), as cited in 2023 Live Law (AB) 57. This landmark judgment, reserved on February 8 and subsequently pronounced on February 13, 2023, offers an extensive and insightful analysis of a crucial legal matter. The court’s ruling, characterized by its erudition and commendable reasoning, addresses the question of whether a woman can be held accountable for the offense of rape. In its clear, cogent, and persuasive verdict, the court unequivocally states that a woman cannot be charged with the crime of rape itself. However, the court establishes that if a woman actively aids or abets the act of rape in conjunction with a group of individuals, she may be prosecuted for gang rape under Section 376D of the Indian Penal Code (IPC). This interpretation is made in light of the amended provisions pertaining to this offense. RELEVANCE AND EVOLUTION OF GANGERAPE THROUGH THE JUDGMENT: It is important to highlight that during the examination of Sections 375 and 376 of the Indian Penal Code (IPC), as amended by Act 13 of 2013, a Single Judge Bench presided over by the esteemed Justice Shekhar Kumar Yadav refuted the argument that a woman cannot be charged with the offense of gang rape. However, the Court acknowledged that Section 375 of the IPC explicitly states that rape can only be committed by a man, thereby barring women from being held liable for this particular crime. Notably, the Court emphasized that this distinction does not extend to Section 376D, which deals specifically with gang rape. Consequently, the Court dismissed the plea. To begin with, in the opening paragraph, Justice Shekhar Kumar Yadav, the Single Judge Bench at the Allahabad High Court, commenced the proceedings by hearing arguments from Sri Ravindra Prakash Srivastava, the learned counsel for the applicant, and Sri R.P. Mishra, the learned A.G.A. representing the State, and thoroughly reviewing the case records. To provide context, in paragraph 2, the Bench elucidated that the present application was filed by the applicant, Suneeta Pandey, seeking the quashing of an order dated 03.12.2018. The order in question summoned the applicant to stand trial under sections 376-D and 212 of the IPC, based on the powers conferred by Section 319 of the Criminal Procedure Code (Cr.P.C.). Additionally, the application sought to quash the entire proceedings of Special Criminal (Sexual) Case No.08 of 2016 (State Vs. Fanindra Mani Ojha alias Dablu and others), arising from Case Crime No.874 of 2015 at Police Station Kotwali Bansi, District Siddharth Nagar. The case involves charges under sections 376-D and 212 of the IPC. The said case is pending before the court of the Additional District and Sessions Judge- Ist, Siddharth Nagar. Furthermore, the applicant requested a stay on the further proceedings of the aforementioned case. As we delve into the details, the Bench elaborates in paragraph 3 that the incident in question occurred on 24.06.2015, and an FIR was lodged against unknown individuals on 28.07.2015, bearing Case Crime No. 874 of 2015. The FIR alleged that someone had enticed and taken away the informant’s 15-year-old daughter. Shifting focus to the order under scrutiny, the Bench proceeds in paragraph 4 to mention that the victim’s statement was recorded under Section 161 and 164 of the Cr.P.C. In her statement recorded under Section 164, the victim implicated the applicant in the alleged incident. However, the applicant was not named in the charge sheet. Subsequently, the opposite party no. 2 filed an application under Section 319 of the Cr.P.C, seeking the summoning of the applicant. The lower court, through its order dated 03.12.2018, summoned the applicant to stand trial for offenses under Sections 376-D and 212 of the Cr.P.C. This order is the subject of challenge before the present Court. Importantly, in paragraph 8, the Bench observes that it has considered the submissions made by the applicant’s counsel and the provisions of Section 319 of the Cr.P.C. The Bench concludes that no interference is warranted in the impugned order. The Court refers to the case of Hardeep Singh vs. State of Punjab and others (2014) 3 SCC 92, where the Hon’ble Apex Court elucidated the scope and ambit of Section 319 of the Cr.P.C. According to this decision, the Court can invoke its powers under Section 319 when satisfied that the person against whom no charge has been framed, but whose involvement appears evident, should be tried alongside the accused. The Supreme Court’s ruling in Hardeep Singh’s case was further explained in the case of Manjeet Singh vs. State of Haryana and others (2021) SCC Online SC 632. The Supreme Court, after considering subsequent judgments on the issue, summarized the scope and extent of the Court’s powers under Section 319 of the Cr.P.C. The Court clarified that the term “evidence” mentioned in Section 319 includes only the evidence presented before the Court in relation to statements and documents that can be used by the Court to uncover all relevant facts, excluding the material collected during the investigation by the investigating agency. Additionally, it was established that evidence also encompasses the evidence presented during the trial after the framing of charges. The Supreme Court clarified that any material received by the Court after taking cognizance but before the trial commences can only be utilized for corroboration and supporting the evidence recorded by the Court to invoke the power under Section 319 of the Cr.P.C. The Bench proceeds to expound in paragraph 9 that the argument put forth by the applicant’s counsel, stating that a woman cannot commit rape and, therefore, cannot be prosecuted for gang rape, is erroneous upon considering the amended provisions of Sections 375 to 376E of the Indian Penal Code (IPC) introduced by Act 13 of 2013. For the sake of clarity, the Bench acknowledges and clarifies in paragraph 10 that the case of Priya Patel involved a gang rape scenario where the appellant’s wife facilitated the commission of gang rape under Section 376(2) (g) of the IPC. After an extensive discussion on the provisions of Sections 375 and 376 of the IPC, it was concluded in that case, among other things, that a woman cannot be prosecuted for the alleged offense of gang rape. Significantly and unequivocally, the Bench leaves no room for ambiguity in mandating in paragraph 11 that upon examining the amended provisions of Section 375 and 376 of the IPC, the question of whether a female can commit the offense of rape is clearly answered by the unambiguous language of Section 375, which explicitly states that rape can only be perpetrated by a ‘man’ and not by any woman. Consequently, a woman cannot commit rape. However, upon reexamining the amended provision of Section 376-D of the IPC, which deals with the offense of gang rape, it is revealed that if a woman is raped by one or more persons acting in concert or furtherance of a common intention, each person involved shall be deemed to have committed the offense of rape. The punishment for such an offense is rigorous imprisonment for a minimum term of twenty years, extendable to life imprisonment, which denotes imprisonment for the remainder of that person’s natural life, along with a fine. Therefore, it is evident from the language employed in Section 376-D of the IPC that in order to establish an offense under this section, the prosecution must present evidence indicating the joint action of one or more persons with a common intention. If rape has been committed by even one person within the group, all the accused will be held guilty, regardless of whether the victim was raped by one or more of them. This provision embodies the principle of joint liability, and the essence of that liability lies in the existence of prior concert and shared criminal intent, which can be determined from the conduct of the offenders during the course of action. In such cases, there must be a criminal sharing, demonstrating a certain level of collective involvement in the commission of the offense. The term “person” used in the section should not be narrowly construed. Section 11 of the IPC defines “person” to include any company, association, or body of persons, whether incorporated or not. The term “person” is also defined in the Shorter Oxford English Dictionary, encompassing an individual human being as well as a man, woman, or child. Consequently, a woman cannot commit the offense of rape, but if she facilitates the act of rape with a group of people, she may be prosecuted for gang rape in accordance with the amended provisions. Unlike men, women can also be held guilty of sexual offenses, including gang rape, if they have facilitated the act of rape with a group of individuals. Lastly, in paragraph 12, the Bench concludes that based on the aforementioned facts and the legal principles laid down by the Apex court; there is no justification for interfering with the impugned order issued by the trial court at this stage. The application lacks merit and is accordingly dismissed. In summary, it is evident that the Allahabad High Court has candidly acknowledged that a woman cannot commit the offense of rape. However, it has also added a caveat that if a woman facilitates the act of rape with a group of people/persons then with the view of amended procedures of act 13 of 2013, such a woman will be prosecuted for having committed gang rape.  Aishwarya Says: The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken. 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