CBI moves Supreme Court against bail to Kuldeep Singh Sengar in Unnao Rape

The Central Bureau of Investigation has approached the Supreme Court challenging the Delhi High Court verdict suspending the life sentence of former Uttar Pradesh BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case of a minor girl..CBI has challenged the High Court’s decision granting suspension of sentence under Section 389(1) of the Code of Criminal Procedure during the pendency of Sengar’s criminal appeal..The Delhi High Court on December 23 suspended the sentence of Sengar in the 2017 Unnao rape case of a minor girl.The Unnao rape survivor, a minor, was allegedly kidnapped and raped by Sengar between June 11-20, 2017. She was then sold for ₹60,000, after which she was recovered at the Maakhi police station.In December 2019, Sengar was convicted and sentenced to life imprisonment by the trial court for rape and the offence of aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act (POCSO Act). While imposing the maximum sentence on Sengar, the trial court remarked that there were no mitigating circumstances. It was added that being a public servant in a democratic set up, Sengar enjoyed the faith of people which was betrayed and a single act of depravity was enough to do so.The appeal against the same is pending.Meanwhile, Sengar sought suspension of sentence and bail which was allowed by the High Court on December 23. The basis for releasing Sengar was the Court’s 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 Division Bench of Justices Subramonium Prasad and Harish Vaidynathan Shankar of High Court 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 Court further said 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..Not a public servant: Here is why Delhi High Court granted bail to Kuldeep Singh Sengar in Unnao Rape.The CBI has now contended in its appeal before the Supreme Court that High Court erred in law in holding that the offence of aggravated penetrative sexual assault under Section 5(c) of the POCSO Act was not made out against Sengar.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..As per the petition, "High Court failed to consider that a sitting MLA, by virtue of holding a constitutional office, is vested with public trust and authority over the electorate, and that such position carries heightened responsibility arising from duties owed to the State and society," reads the petition..CBI has further argued that the High Court failed to adopt a purposive interpretation of the POCSO Act, which is a special and victim centric legislation enacted to protect children from sexual offences. According to the plea, Section 5(c) is intended to punish sexual exploitation of children by persons who misuse positions of power, authority or status..On the issue of suspension of sentence, the CBI has submitted that in cases involving life imprisonment for heinous offences, long incarceration by itself cannot be a determinative factor to grant bail.The agency has relied on settled law that suspension of sentence post conviction is an exception and not the rule, particularly in cases involving sexual offences against minors..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..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.