Supreme Court stays Delhi HC order granting bail to Kuldeep Sengar in Unnao rape case | Key observations

Kuldeep Singh Sengar (file image)

• Supreme Court stays Delhi HC order suspending Kuldeep Sengar's life sentence
• Sengar stays in jail while Supreme Court reviews POCSO Act definitions.
• Court seeks Sengar's response in four weeks, further hearing to follow

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The Supreme Court on Monday stayed the operation of a Delhi High Court order that had suspended the life sentence of former Uttar Pradesh MLA Kuldeep Singh Sengar in the 2017 Unnao rape case involving a minor. The apex court’s intervention ensures that Sengar will not be released from custody while his appeal remains pending.

A three-judge vacation bench comprising Chief Justice of India Surya Kant, Justice JK Maheshwari and Justice Augustine George Masih passed the interim order while hearing a petition filed by the Central Bureau of Investigation (CBI), which challenged the High Court’s December 23 decision granting suspension of sentence to the expelled Bharatiya Janata Party leader.

The Supreme Court noted that although it generally refrains from staying orders where a convict has already been released, the present case involved “peculiar facts” as Sengar continues to remain in jail in connection with another conviction. “Thus respondent (Sengar) shall not be released pursuant to the said order,” the bench said while issuing notice on the CBI’s plea.

Sengar was convicted by a Delhi trial court in December 2019 for offences under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act. He was sentenced to imprisonment for the remainder of his natural life. The High Court had suspended this sentence after forming a prima facie view that the charge of aggravated penetrative sexual assault under the POCSO Act was not made out.

The High Court held that Sengar could not be treated as a “public servant” under Section 5(c) of the POCSO Act or Section 376(2)(b) of the IPC. It further ruled that he did not fall within the category of a person in a “position of trust or authority” under Section 5(p) of the POCSO Act. These findings formed the basis for suspending his life sentence during the pendency of his appeal.

Appearing for the CBI, Solicitor General Tushar Mehta described the case as “a horrific case of rape of a child,” stressing that the survivor was 15 years old at the time of the offence. He told the court that Sengar had been convicted on two counts — under Section 376 of the IPC and Sections 5 and 6 of the POCSO Act — and argued that the High Court failed to properly consider the conviction under the IPC while suspending the sentence.

“There is a finding recorded which says the child was less than 16 and was 15 years 10 months,” Mehta submitted, adding that the trial court had held that the offence attracted an aggravated form of punishment, which could extend to imprisonment for the remainder of the convict’s biological life.

Addressing the High Court’s reasoning on the definition of “public servant”, Mehta contended that the approach was erroneous. According to the CBI, an MLA occupies a constitutional position of trust and authority and exercises public duties in which both the State and society have a direct stake. “Public servant is not defined in this section and it is defined from borrowing that what IPC says shall be the definition… But a definition needs to be contextual,” he argued.

Mehta also urged the court to consider the safety of the survivor and her family, warning that Sengar’s influence could pose a serious threat if he were released. “We are answerable to the child who was 15 years old!” he said, appealing to the court’s conscience.

The bench engaged closely with the submissions, questioning whether it was plausible that a police constable could fall within the ambit of a public servant under the POCSO Act, but an elected MLA would be excluded. “We are worried that a constable shall be a public servant under the Act, but an MLA will be excluded!” the Chief Justice remarked.

Senior advocates Siddhartha Dave and N Hariharan, appearing for Sengar, opposed the CBI’s plea, maintaining that an MLA could not be treated as a public servant under the relevant provisions. “A penal statute cannot import definition from another statute,” Hariharan argued, adding that Sengar had already undergone over a decade in custody.

After hearing both sides, the Supreme Court concluded that the matter raised substantial questions of law requiring deeper examination. While acknowledging the standing of the High Court judges who passed the impugned order, the bench observed, “We are all prone to committing errors.”

The court has sought responses from Sengar within four weeks and will take up the matter for further hearing thereafter.

Key observations:

• The court indicated that the legal interpretation of “public servant” and “position of trust or authority” under the POCSO Act requires reconsideration.

• It noted that the High Court appeared to proceed on the assumption that conviction was only under the POCSO Act, without adequately addressing the IPC conviction.

• The bench stressed that ordinarily, liberty is not curtailed once a convict is released, but this principle did not apply here due to Sengar’s continued incarceration in another case.

• The court flagged concerns that excluding an MLA from the definition of public servant could lead to anomalous outcomes under child protection laws.

• The Supreme Court underscored the seriousness of offences involving minors and the need for a contextual and purposive interpretation of penal statutes.