Woman Can Be Prosecuted for Gang Rape if she Facilitate the Act – Allh. HC

Allahabad High Court in a recent Judgment (Suneeta Pandey Vs State of U.P. D.D 13Feb2023) held that even a woman can be summoned in a rape case if facilitate other accused in crime.

The Court has heard both parties and perused the record, including Sri Ravindra Prakash Srivastava, learned counsel for the applicant, and Sri R.P. Mishra, learned A.G.A. for the State.

The applicant, Suneeta Pandey, has filed an application seeking to quash the order summoning her to face trial under Sections 376-D and 212 IPC and the entire proceedings of Special Criminal (Sexual) Case No.08 of 2016 pending in the court of Additional District and Sessions Judge- Ist, Siddharth Nagar, which arose out of Case Crime No.874 of 2015, under Section 376-D & 212 IPC, Police Station Kotwali Bansi, District- Siddharth Nagar. The applicant also prays for a stay on the further proceedings of the case.

The incident in question took place on 24.06.2015, and the FIR was lodged against unknown persons on 28.07.2015, under Sections 363 and 366 IPC, alleging that someone enticed away the informant's 15-year-old daughter.

The victim's statement was recorded under Section 161 and 164 Cr.P.C. The victim stated in her statement recorded under Section 164 Cr.P.C. that the applicant was involved in the alleged incident, but the applicant was not named in the charge sheet. Opposite party no. 2 filed an application under Section 319 Cr.P.C. for summoning the applicant, and the court below summoned the applicant to face trial for the offence under Sections 376-D and 212 Cr.P.C. This order is being challenged before the Court.

The applicant's counsel argued that as the applicant is a woman, she cannot be charged under Section 376-D I.P.C. and has been wrongly summoned by the trial court. The counsel contended that the impugned order is flawed as it solely relies on the victim's statement and some other extraneous documents, which are not sufficient. The counsel argues that the order is a blatant miscarriage of justice and should be quashed.

The applicant's counsel further argued that the trial court erred in summoning the applicant for the offence punishable under Section 376-D IPC and Section 212 IPC. The counsel relied on the Supreme Court's decision in Priya Patel vs. State of M.P. and another and the case of State of Rajasthan vs. Hemraj & Another, to support the argument that a woman cannot commit rape and, therefore, cannot be prosecuted for gang rape. The counsel also argued that the applicant cannot be held guilty under the explanation to Section 376(2)(g) of IPC.

The prosecution opposed the applicant's argument and submitted that the applicant committed the alleged offence and that being a woman does not exempt her from being charged under Section 376-D I.P.C. The prosecution argued that the cases relied upon by the applicant's counsel are of no help as they relate to the provisions of Sections 375 to 376E IPC prior to the amendment.

In this case, the Court considered the submission made by the learned counsel for the applicant regarding Section 319 of the Cr.P.C. and the case law on the issue. The Court concluded that no interference is called for in the impugned order, as the scope and ambit of Section 319 have been clarified by the Hon'ble Apex Court in the cases of Hardeep Singh Vs. State of Punjab and others, and Manjeet Singh Vs State of Haryana and others. The Court held that 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, can be used while arraigning an additional accused.

The Court also considered the argument made by the applicant's counsel that a woman cannot commit rape and, therefore, cannot be prosecuted for gang rape. The Court held that while a woman cannot commit the offence of rape, she can be held guilty of gang rape if she facilitated the act of rape with a group of people, as per the amended provisions of Section 375 to 376E IPC by Act 13 of 2013 of the Indian Penal Code, 1860. The Court cited the case of Priya Patel to illustrate this point. The Court found no scope for interference in the impugned order passed by the trial court and dismissed the application.

Suneeta Pandey Vs State of U.P.