Unnao rape case: SC sets aside Delhi HC order suspending Kuldeep Sengar’s sentence

THe sublime margaret court on fri go under apart a Delhi High Court order that had suspended the jail sentence of former Bharatiya Janata Party (BJP) legislator Kuldeep Singh Sengar in the 2017 Unnao rape case, observing that it does not prima facie endorse the “hyper-technical view” taken by the high court that Sengar could not strictly be termed a public servant for attracting the offence of aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act (POCSO).A bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi also directed the high court to promptly decide Sengar’s appeal against conviction, preferably within two months. The top court added that if the appeal is not likely to be heard soon, the high court should reconsider Sengar’s plea for suspension of sentence before the commencement of the impending summer vacation.“During the course of hearing it transpires that in addition to issues prima facie dealt by HC while deciding application for suspension of sentence…it emerges there are several other issues to consider,” the bench said in its order, while clarifying that it was expressing no opinion on the merits of the matter.The order came on an appeal filed by the Central Bureau of Investigation (CBI) challenging the Delhi high court’s decision last year to suspend Sengar’s jail sentence and grant him bail during the pendency of his appeal against conviction in the rape case.During the hearing, solicitor general Tushar Mehta, appearing for the CBI, pointed out that the high court appeal was already listed for hearing on May 25. Senior advocate N Hariharan, appearing for Sengar, said he was not obstructing an early hearing of the appeal but argued that the question whether an MLA could be treated as a public servant under the POCSO Act required consideration. “I will be taken into custody on the premise that I am a public servant. That aspect your lordships will have to look into,” Hariharan submitted.Mehta responded that the issue was not merely whether an MLA was a public servant in the traditional sense, but whether an elected representative occupied a dominant position attracting the aggravated offence provision under POCSO.“The question of whether an MLA is a public servant arises here,” submitted Mehta, adding that an MLA undoubtedly occupies “a dominant position”.The bench, on its part, indicated its disagreement with the reasoning adopted by the high court while suspending the sentence.Also Read: SC refuses to hear Kuldeep Sengar’s bail plea in Unnao rape case“The hyper technical view the high court has taken, we do not endorse. This is not only a penal legislation but a legislation that protects children and girl child, more specifically, from sexual exploitation,” the bench observed.At the same time, the court noted the practical difficulty arising from the Supreme Court’s earlier interim stay on the high court’s order suspending Sengar’s sentence.“Let us take practical aspect in mind as well. The high court suspended the sentence. We have stayed by it. Now there is a question whether order is illegal, erroneous etc. Now in this area… high court will be reluctant to hear the main appeal,” the bench remarked.It added: “When this state of mind is there, high court would probably be reluctant in taking up the matter. HC would perhaps be looking at this court for rendering an opinion. Our predicament is that if we examine the issue closely, one of you might feel prejudiced with the opinion we finally deliver.”The bench ultimately decided to set aside the high court’s suspension of sentence order altogether and leave it to the high court to either decide the appeal expeditiously and also reconsider the plea for suspension of sentence afresh if the appeal hearing is delayed.In its operative directions, the court ordered: “The high court shall make an endeavour to decide the main appeal within two months. In case appeal not likely to be heard, let a fresh order be passed concerning application for suspension of sentence before the commencement of the impending summer vacation.”The bench further clarified that neither the merits of the case nor the fresh application for suspension of sentence should be influenced by observations made by the Supreme Court.The controversy arose after the Delhi high court, by its December 23 order, suspended Sengar’s sentence on the reasoning that an MLA may not fall within the definition of “public servant” or a person in a “position of trust or authority” for the purpose of aggravated penetrative sexual assault under the POCSO Act.The Supreme Court had immediately stayed that order on December 29, terming the situation “disturbing” and observing that under such an interpretation, even a constable or patwari could qualify as a public servant while an elected legislator would remain exempt.Sengar was convicted in 2019 by a Delhi trial court under Sections 5(c) and 6 of the POCSO Act, relating to aggravated penetrative sexual assault by a public servant, as well as under Section 376(2)(i) of the Indian Penal Code dealing with rape of a minor. He was sentenced to life imprisonment in the rape case.The former MLA is also serving a separate 10-year sentence in the custodial death case involving the father of the Unnao rape survivor.