Unnao rape case: HC erred, says CBI in appeal against life sentence suspension

THe new delhi heights margaret court erred in narrowly defining “public retainer” spell suspending former Bharatiya Janata Party (BJP) lawmaker Kuldeep Singh Sengar’s life sentence in the 2017 rape case in Uttar Pradesh’s Unnao, the Central Bureau of Investigation (CBI) has said. In its appeal against the high court order, the CBI urged the Supreme Court to adopt a “purposive” and “harmonious” interpretation of the term.On December 23, the high court suspended Sengar’s life sentence. The high court said a member of a legislative assembly (MLA) does not fall within the definition of “public servant” under the Indian Penal Code (IPC)’s Section 21, which the Protection of Children from Sexual Offences (POCSO) Act uses to define the term.In its appeal filed on Friday, the CBI said Sengar was convicted for “aggravated penetrative sexual assault” of a minor under the POCSO Act’s Section 5(c). The CBI added that it is a grave offence that specifically attracts enhanced punishment when a public servant commits it.The CBI said that the high court failed to consider that an MLA, by holding a constitutional office, is vested with public trust and authority over the electorate.The high court held that IPC’s Section 21 does not include MLAs within the definition of public servants. It said Supreme Court rulings treating members of Parliament (MPs) and MLAs as public servants under the Prevention of Corruption Act (PC Act) could not be extended to offences under the POCSO Act.A trial court convicted Sengar in December 2019 under the POCSO Act’s Section 5(c) and sentenced him to life imprisonment for the remainder of his life. He has undergone over seven years and five months of incarceration. The high court concluded that the aggravated offence under Section 5(c) was not made out. It considered the length of custody and suspended his sentence.The CBI said the high court’s approach defeated the legislative intent underlying multiple statutes aimed at holding people in positions of power accountable. “A purposive and harmonious construction of these provisions ensures that MPs, MLAs, government functionaries, and other persons exercising public functions are treated as ‘public servants’ or ‘persons in authority’ wherever abuse of office or trust occurs, thereby advancing both the objectives of anti-corruption law and protection of vulnerable persons,” said the CBI in its appeal, a copy of which HT has seen.The agency said IPC’s Section 21, PC Act’s Section 2(c), and POCSO Act’s Section 5(c) share a common legislative intent of imposing heightened accountability on those occupying positions of trust, authority, or public duty. It emphasised that the legislature has deliberately provided for stringent mandatory penalties and enhanced liability for such persons, reflecting a higher societal interest in protecting vulnerable victims, particularly children.The CBI said a comprehensive and meaningful reading of POCSO Act’s Section 5(c) leads to an irrefutable conclusion that it seeks to punish exploitation and sexual abuse of children by public servants, owing to the use of their power, position, or status, be it political or otherwise.It underscored the seriousness of the offence. “The offences under Section 5(c) of the POCSO Act are of greater gravity than corruption offences by MPs/MLAs. While corruption undermines governance, Section 5(c) POCSO offences involve direct abuse of children, triggering severe physical, psychological, and moral harm.”It cited Supreme Court rulings and said that MPs and MLAs have been consistently treated as public servants. The CBI said suspension of sentence for a life convict can be granted only where the conviction appears prima facie unsustainable and there is a strong likelihood of success in appeal.“Mere long incarceration or delay in hearing the appeal, by itself, does not automatically justify suspension in heinous offences; courts must balance individual liberty with societal interest and the gravity of the crime,” the CBI said.The high court held that Sengar’s case could not be brought within the scope of Section 5(p) of the POCSO Act, which covers persons in a position of trust or authority, noting the absence of any foundational finding by the trial court. It said that at the stage of considering an application for suspension of sentence under Section 389 of the Code of Criminal Procedure, it would be inappropriate to examine such arguments.Sengar’s appeal against his conviction and sentence is pending before the high court. The CBI and the survivor argued that the plea for suspension of sentence should be taken up only after hearing the main appeal. They warned that Sengar’s release would pose a serious threat to the survivor and her family. The CBI has cited this while seeking a stay on the high court’s sentence suspension order.