New Delhi: The Supreme Court, on Monday, stayed a Delhi High Court order that had suspended the life sentence awarded to former Uttar Pradesh MLA Kuldeep Singh Sengar and granted him bail.
Sengar was sentenced in the infamous Unnao rape case. The survivor was barely 15 at the time of the crime.
The former MLA had appealed the conviction and the High Court granted him bail during the pendency of his appeal. Sengar could not walk free though as he is serving a 10 year sentence for the culpable homicide of the survivor’s father.
The bench of Chief Justice of India Surya Kant, Justice J K Maheshwari and Justice A G Masih passed the order on Monday while issuing notice on pleas challenging the Delhi High Court verdict.
“We find that there are substantial questions of law. Issue notice. Ordinarily, when a convict/undertrial has been released on bail pursuant to TC/HC order, such order should not be stayed by this court without hearing such person. However, respondent is convicted and sentenced in another case under Section 304 Part 2 IPC and is in custody in that case. We stay operation of impugned order in peculiar facts. Respondent shall not be released from custody pursuant to the impugned order. Victim has a statutory right to file separate SLP. She does not require liberty from this Court. If she requires free legal aid, SC Legal Service Committee shall provide free legal aid. She may file her appeal through her own counsel also,” the Court ordered, as per LiveLaw.in.
The bench was hearing two petitions – one by the CBI, and another, by advocates Anjale Patel and Pooja Shilpkar, challenging the Delhi High Court’s order. While staying the impugned decision, it issued notice on the pleas to Sengar.
Solicitor General Tushar Mehta, appearing for the CBI, submitted that the High Court had erred in holding that aggravated offence provisions under the POCSO Act were not attracted as Sengar could not be treated as a public servant. He argued that offences under the POCSO Act are structured around the concept of penetrative sexual assault and aggravated penetrative sexual assault, and that aggravation arises when the offender is in a position of dominance over the child.
The term “public servant” is not defined in the POCSO Act and therefore has to be understood contextually, Mehta said. For the purposes of POCSO, a public servant would mean a person who is in a dominant position with respect to the child, and misuse of that position would attract the aggravated offence provisions, he said.
Sengar, being a powerful MLA in the area at the relevant time, clearly exercised such dominance, the SG argued.
“POCSO Act to have overriding effect…this convict also held guilty of killing the survivor’s father and some other people…he is still in jail…he has not been able to come out…I urge your lordships to stay the order. We are answerable to the child who was 15 years old!”, Mehta said.
When the Chief Justice asked whether the CBI’s case was that the concept of being a public servant becomes irrelevant once the victim is a minor, the SG responded that penetrative sexual assault on a child is itself an offence under POCSO, and that aggravation depends on the circumstances, such as abuse of dominance. He submitted that later amendments enhancing punishment do not create new offences and therefore do not violate Article 20 of the Constitution.
Senior Advocates Siddharth Dave and N Hariharan, appearing for Sengar, opposed the CBI’s submissions and argued that an MLA cannot be treated as a public servant for the purposes of aggravated offences under POCSO. They submitted that a penal statute cannot import definitions from another statute unless the law expressly provides for it, and that the IPC contains its own scheme for defining public servants. They also contended that the charge framed and answered during trial was under Section 376(1) IPC.
This is where the CJI expressed concern over excluding MPs/MLAs from the definition of public servant.
“If this interpretation is accepted, a constable or patwari will be public servant but MLA/MP will not be and get exempted”, he said.
Justice Maheshwari pointed out that the High Court had not examined the applicability of Section 376(2)(i) IPC, which was in force on the date of the offence and deals with rape of a minor. The legal issue concerning the definition of “public servant” and its relevance under the POCSO framework requires determination, the bench observed.
“Matter requires consideration. We are inclined to stay the order. General principle is once someone has been released, person will be heard. But here, he continues to be in custody (in a separate case)”, the CJI said.
The High Court, while granting bail to Sengar, held that aggravated offence provisions under Section 5(c) of the Protection of Children from Sexual Offences Act and Section 376(2) of the Indian Penal Code were not attracted in the case, as he could not be categorized as a “public servant” within the meaning of those provisions. On that basis, it proceeded to suspend the sentence.
The CBI had challenged this order and contended that the High Court’s decision had the effect of diluting the protective framework of the POCSO Act, and was legally unsustainable given the gravity of the offence and the settled principles governing suspension of life sentences.
The CBI also flagged concerns about the safety of the victim, arguing that Sengar’s release poses a real risk given his past conduct and the influence he wields. It warned that suspending the sentence of a powerful convict in such circumstances undermines public confidence in the criminal justice system and sends a troubling message in cases of sexual violence against children.
Sengar was convicted in 2019 by a special CBI court for raping a minor girl in Unnao district of Uttar Pradesh and was sentenced to life imprisonment. The case had drawn nationwide attention, with the survivor and her family alleging sustained harassment and intimidation by the former legislator and his associates. Several related cases, including those involving attacks on the survivor’s family members, were also investigated by the CBI on the directions of the apex court.
