New Delhi : The Supreme Court on Monday stayed the operation of a Delhi High Court order that had suspended the life sentence of expelled BJP leader Kuldeep Singh Sengar in the 2017 Unnao rape case involving a minor girl.
A three-judge vacation bench comprising Chief Justice of India Surya Kant and Justices J.K. Maheshwari and Augustine George Masih issued notice to Sengar on an appeal filed by the Central Bureau of Investigation (CBI) challenging the High Court’s December 23 order. The bench directed that Sengar shall not be released from prison.
Staying the High Court’s order, the apex court noted that Sengar is currently incarcerated in connection with another case. “The operation of the Delhi High Court order dated December 23 shall remain stayed, and the respondent shall not be released pursuant to the said order,” the bench observed.
The court clarified that it is generally reluctant to stay orders granting relief to convicts or undertrials without hearing them. However, it said the present case involved “peculiar facts,” as Sengar stands convicted in a separate offence. The court directed that a counter-affidavit be filed within four weeks.
During the hearing, Solicitor General Tushar Mehta, appearing for the CBI, argued that under the Protection of Children from Sexual Offences (POCSO) Act, a “public servant” includes anyone in a dominant position over a child, and misuse of such authority attracts provisions relating to aggravated offences. 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, representing Sengar, opposed the CBI’s submissions, arguing that a legislator cannot be treated as a “public servant” for the purpose of aggravated offences under the POCSO Act.
Expressing concern over the High Court’s interpretation, the Supreme Court remarked that excluding elected representatives from the definition of “public servant” under Section 5 of the POCSO Act could result in unintended immunity for lawmakers. “We are worried that a constable or a patwari would be considered a public servant under the Act, but an MLA or MP would not,” the bench observed.
The Delhi High Court had suspended Sengar’s sentence after holding, on a prima facie basis, that the offence of aggravated penetrative sexual assault under the POCSO Act was not made out against him, as he did not qualify as a public servant. However, Sengar remained in custody as he had not been granted bail in a separate case related to the custodial death of the victim’s father.
Challenging the High Court’s decision, the CBI argued before the Supreme Court that a sitting MLA occupies a constitutional position of trust and authority and performs public duties in which the state and society have a direct interest. It said the High Court erred in law by excluding Sengar from the scope of Section 5(c) of the POCSO Act.
Under the POCSO Act, penetrative sexual assault is treated as an aggravated offence if committed by a public servant, police officer, or other persons in positions of authority. Aggravated penetrative sexual assault carries a minimum punishment of 20 years’ imprisonment, which may extend to life imprisonment.
In 2019, a Delhi trial court convicted Sengar under the Indian Penal Code and the POCSO Act and sentenced him to imprisonment for the remainder of his natural life, holding that he fell within the definition of a “public servant.”
The Unnao rape survivor, who was a minor at the time, was allegedly kidnapped and raped by Sengar between June 11 and June 20, 2017, and was later recovered by the police.
