Not a public servant: Here is why Delhi High Court granted bail to Kuldeep Singh Sengar in Unnao Rape

The Delhi High Court on Tuesday suspended the sentence of former BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case of a minor girl. The basis for releasing Sengar is the Court’s prima facie finding that the offence of aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act was not made out against him. 

Section 5 of the POCSO Act lists circumstances under which a penetrative sexual assault (rape) 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.

“In view of the above, this Court is of the prima facie view that for the purpose of suspension of sentence, the Appellant cannot be brought into the ambit of „aggravated penetrative sexual assault‟ under Section 5 of the POCSO Act, punishable under Section 6 of the POCSO Act, or under Section 376(2) of the IPC, which provides for the punishment of imprisonment for remainder of his natural life,” the Court observed. 

It added that in the absence of aggravated penetrative assault, the minimum punishment that a person can be given under Section 4 of the POCSO is seven years, which Sengar has already undergone. 

“In the opinion of this Court, at this stage, being satisfied that (i) offence under Section 5(c) of the POCSO Act is not made out against the Appellant on account of him not falling within the definition of a “public servant”, (ii) only an offence under Section 3 of the POCSO Act would be made out, and (iii) looking at the fact that the Appellant has already undergone about 7 years and 5 months under incarceration, which is more than minimum number of years under Section 4 of the POCSO Act prior to its amendment in 2019, this Court is inclined to suspend the sentence of the Appellant,” it said. 

The Court rendered these observations while dealing with Sengar's plea for suspension of sentence. The application was moved by the former legislator in his appeal against the trial court order sentencing him to life imprisonment.

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.

The survivor was thereafter continuously threatened and warned by the police officials against speaking out, as instructed by Sengar.

An FIR finally came to be recorded against Sengar for rape, kidnapping and criminal intimidation along with the provision of the Protection of Children from Sexual Offences Act (POCSO Act). He was arrested after an order of the Allahabad High Court.

In August 2019, the Supreme Court transferred the trial in four cases relating to the Unnao rape case to Delhi and ordered that the same be held on a day-to-day basis and completed within 45 days.

In December 2019, Sengar was convicted and sentenced to life imprisonment in the rape case by the trial court. The trial court had treated Sengar as a "public servant" and held that 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.

Senior Advocates N Hariharan and Manish Vashisht with advocates SPM Tripathi, Amit Sinha, Deepak Sharma, Rahul Poonia, Ambuj Singh, Ashish Tiwari, Aishwarya Senger, Gaurav Kumar, Saurabh Dwivedi, Punya Rekha, Angara, Vasundhara N, Aman Akhtar, Sana Singh, Vasundhara Raj Tyagi, Arjan Singh Mandla, Gauri Ramachandran, Manish Vashisht, Vedansh Vashisht and Swapan Singhal appeared for Kuldeep Sengar. 

Special Public Prosecutor (SPP) Anubha Bhardwaj along with advcoates Vijay Mishra and Ananya Shamshery represented the CBI. 

Advocates Mehmood Pracha, Sanawar, Jatin Bhatt, Kshtij Singh and Kumail Abbas appeared for the complainant. 

Advocate Urvi Mohan represented the Delhi Commission for Women.

[Read Judgment]