Unnao Rape Case: Supreme Court stays Kuldeep Sengar's suspension of sentence

New Delhi [India], December 29 : The Supreme Court on Monday stayed the operation of the Delhi High Court order, which suspended the life sentence of expelled Bharatiya Janata Party (BJP) leader Kuldeep Singh Sengar in the 2017 Unnao rape case of a minor girl.
A three-judge vacation of Chief Justice of India Surya Kant and Justices JK Maheshwari and Augustine George Masih also issued notice to Sengar on an appeal of CBI against the High Court order.
The bench stayed the High Court order, noting that Sengar is in jail for another case. It said the operation of the High Court order shall be stayed, and Sengar shall not be released from prison.
"Issue notice. We have heard Solicitor General Tushar Mehta for CBI and Senior Advocate for the convict... Counter will be filed in four weeks. We are conscious of the fact that when a convict or an undertrial has been released, such orders are not ordinarily stayed by this court without hearing such persons. But in view of peculiar facts where the convict is convicted for a separate offence, we stay the operation of the Delhi High Court order dated December 23, and thus the respondent shall not be released pursuant to the said order," ordered the bench.
During the hearing, Solicitor General Mehta, appearing for CBI, said that for the purposes of the Protection of Children from Sexual Offences Act (POCSO Act), 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 contended that Sengar, being a powerful MLA in the area at the relevant time, clearly exercised such dominance.
Senior advocates Siddharth Dave and N Hariharan, appearing for Sengar, opposed the CBI's contentions, arguing that an MLA cannot be treated as a public servant for the purposes of aggravated offences under POCSO.
The bench, however, expressed concern that the High Court's interpretation of the term "public servant" under Section 5 of the POCSO Act could be erroneous and could confer immunity on lawmakers.
"Please see this definition of public servant under POCSO... we are worried that a constable or patwari will be a public servant under the Act, but MLA and MP will not be and get exempted," observed the bench.
The Delhi High Court on December 23 suspended the sentence of Sengar, saying that, as per a prima facie finding, the offence of aggravated penetrative sexual assault under the POCSO Act was not made out against him.
However, he has remained in custody as he has not yet been granted bail in the victim's father's custodial death matter.
Approaching the top court against the High Court order, CBI said that the High Court erred in law in holding that the offence of aggravated penetrative sexual assault under Section 5(c) of the POCSO Act was not made out against Sengar on the ground that he was not a public servant.
According to the CBI, a sitting MLA occupies a constitutional position of trust and authority and performs public duties in which the state and the community at large have an interest.
Section 5 of the POCSO Act lists circumstances under which a penetrative sexual assault of a child is considered an aggravated penetrative sexual assault and as per it penetrative sexual assault becomes aggravated penetrative sexual assault if it is committed by a public servant or a police officer within the limits of the police station or a member of the armed forces or security forces or a hospital staff or jail staff.
As per the law, aggravated penetrative sexual assault attracts a minimum punishment of 20 years in jail and can extend to a life sentence.
In 2019, Sengar was convicted by a Delhi trial court for offences under the Indian Penal Code and the POCSO. He was sentenced to imprisonment for the remainder of his natural life.
The trial court had said that Sengar fell within the definition of a 'public servant'.
The Unnao rape survivor, a minor, was allegedly kidnapped and raped by Sengar between June 11-20, 2017. She was then sold, and was subsequently recovered at the Maakhi police station.