A three-judge bench of the Supreme Court is hearing the Central Bureau of Investigation (CBI) plea challenging the Delhi High Court order suspending the life sentence awarded to former Uttar Pradesh MLA Kuldeep Singh Sengar in the Unnao rape case.
The matter is being heard by a vacation bench of Chief Justice of India (CJI) Surya Kant and Justices JK Maheshwari and Augustine George Masih.
The CBI has approached the apex court against the Delhi High Court’s December 23 verdict suspending the life sentence awarded to Sengar by the trial court.
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 Act and was sentenced to imprisonment for the remainder of his natural life.
The High Court's basis for releasing Sengar was the prima facie finding that the offence of aggravated penetrative sexual assault under the POCSO Act was not made out against him.
Section 5 of the POCSO Act lists circumstances under which a penetrative sexual assault of a child is considered an aggravated penetrative sexual assault. As per the same, 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. Aggravated penetrative sexual assault attracts a minimum punishment of 20 years in jail and can extend to a life sentence.
Sengar was punished by the trial court for the said offence on the ground that he fell within the definition of a 'public servant'.
However, the High Court Division Bench of Justices Subramonium Prasad and Harish Vaidyanathan Shankar held that he cannot be categorised as a public servant under Section 5(c) of the POCSO Act or Section 376(2)(b) of the IPC.
The High Court further said that Sengar cannot come within the four corners of Section 5(p) of the POCSO Act, which punishes a person in “position of trust or authority” for aggravated penetrative sexual assault.
This prompted the CBI to approach the Supreme Court.
The CBI has contended before the apex court that the High Court erred 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.
The CBI has also raised concerns regarding the safety of the survivor and her family, stating that Sengar is an influential person and that his release during the pendency of the appeal would jeopardise their security and undermine public confidence in the justice delivery system.
Live updates from today's hearing here.
Bench assembles. Matter is listed as Item 3.
Solicitor General (SG) Tushar Mehta for CBI: This is a horrific case of rape of a child. Charges were framed under Section 376 IPC and Sections 5 and 6 of the POCSO Act.
SG: Conviction is on two counts. I have quoted all relevant parts. Para 3 of my note has conviction order.
SG: There is a finding recorded which says the child was less than 16 and was 15 years 10 months. Against this conviction, appeal is pending.
Justice JK Maheshwari: Section 376 had been dealt with.
SG: 376 has two parts. He is convicted under rape, which is 375. Then rape by someone who enjoys a dominant position...then minimum prison sentence is 20 years or can extend to the biological life.
CJI Kant: You say it falls under 376(2)(i)...Assuming victim is not a minor...even then minimum sentence to 376(2)(i) will apply...
SG: It has been amended now which says minimum is 20 years.
Justice Maheshwari: Amendment was not there when the commission of offence was there. So (i) was applicable as it then existed.
SG: 376 - whether (i) or (ii)...life imprisonment is there. Whether 20 or biological life...
CJI Kant: Are you saying concept of public servant is irrelevant if the victim is a minor?
SG: Yes. Penetrative sexual assault is an independent offence. Now clause 4 provides for the punishment. Now after amendment, there are certain situations where there is aggravated offence. The categories are if the person is in a dominant position over the victim.
SG: Please take example when during course of duty, if constable does such an act, he will be guilty of this. Then if any army officer on duty does such an act then, he will be guilty of aggravated sexual assault. 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...unless the context as otherwise provides.
CJI: So you say public servant is someone who is enjoying a dominant position that point of time...so you say that when someone comes to MLA for some help, the act being done is in dominant position and that any such act will be an aggravated act. This is your argument.
CJI: The phrase "context otherwise requires" ...
SG: Suppose for the sake of argument we say that he is not a public servant under Section 5. Then he falls under Section 3. Amendment did not create a new offence, but only enhancement of punishment. So new offence cannot be created retrospectively, but here, that is not the case.
CJI: So you say amendment doesn't obliterate the offence and rather legislature says the offence is against ethos of society it is being taken seriously...so when courts are sentencing after conviction is done...it is seen that legislature intends to make it harder. That is what you say.
SG: Please see Section 42A of POCSO Act, which shows when there is divergence between this law and any other law. High Court did not deal with this. This convict was held guilty of murdering the father of the party. He is still in jail for that. I urge the conscience of this Court to stay this order for the sake of the child who was a victim of this.
Senior Advocate Siddhartha Dave: Please see Section 2(2) of the POCSO. That has not been cited. High Court held that since IPC is specifically mentioned and it defines public servant...
CJI Kant: But if conviction is under two penal statutes and High Court proceedings only under POCSO.
Dave: Sentencing was granted only because he fell under definition of public servant.
CJI: Tentatively, we are inclined to stay the order. Generally, the principle is since the person has walked out, the court does not take away the liberty. But here, the situation is peculiar since he is inside the jail for another case.
Justice Maheshwari: Show us where the High Court has considered whether he is guilty under Section 376(2)(i) or not.
Senior Advocate N Hariharan for Sengar: A penal statute cannot import definition from another statute.
Justice Maheshwari: We are only saying one thing. See the trial court order. Para 14 is the answer. Where in the suspension order has this been dealt with? That was Section 376 (2)(i). That's all. Show us.
CJI: Legal issue requires consideration and the judges of the High Court who passed this order are some of the finest judges. But we are all prone to committing errors! Please see this definition of public servant under POCSO...we are worried that a constable shall be a public servant under the Act, but an MLA will be excluded!
Hariharan: Is this a media trial? Here, the doctrine of separation of powers will come into place.
Dave: Photos of (High Court) judges are doing the rounds.
CJI Surya Kant: Issue notice. We have heard SG Mehta for CBI and seniors for the convict. We find that there are various substantial questions of law that arise. Counter to be filed in 4 weeks. We are conscious of the fact that when convict or undertrial has been released, such orders are not ordinarily stayed by this court without hearing such persons. But in view of peculiar facts where convict is convicted for a separate offence, we stay operation of Delhi High Court order dated December 23, 2025. Thus respondent (Sengar) shall not be released pursuant to the said order.