Unnao Rape: Supreme Court stays Delhi High Court grant of bail to Kuldeep Singh Sengar

The Supreme Court on Monday stayed the operation of the Delhi High Court order which had granted bail and suspended the life sentence awarded to former Uttar Pradesh MLA Kuldeep Singh Sengar in the Unnao rape case.

A vacation bench comprising Chief Justice of India (CJI) Surya Kant, Justice JK Maheshwari and Augustine George Masih issued notice to Sengar on appeal filed by the Central Bureau of Investigation (CBI) against the High Court order.

The Court stayed the High Court and ordered that Sengar not be released from jail pursuant to the High Court decision.

"Issue notice. We have heard Solicitor General Tushar Mehta for CBI and Senior Advocate for the convict. We find that there are various substantial questions of law which arises. Counter 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 the operation of the Delhi High Court order sated December 23 and thus the respondent shall not be released pursuant to the said order," the Court said.

The apex court also raised apprehensions that the High Court's interpretation of the word 'public servant' under Section 5 of the Protection of Children from Sexual Offences Act (POCSO Act) could be erroneous and could end up excluding law makers.

"Legal issue requires consideration and the judges of the HC 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 a Member of Legislative Assemblu will be excluded," the top court remarked.

Background

The CBI 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.

However, the High Court suspended the sentence and ordered Sengar's release on bail.

This was based on the prima facie finding that the offence of aggravated penetrative sexual assault under the POCSO Act was not made out against Sengar. 

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 High 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 its appeal before the top court, CBI contended that the 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 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.

CBI 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.

Hearing today

Solicitor General Tushar Mehta, appearing for the CBI, challenged the High Court order.

"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. Conviction is on two counts. I have quoted all relevant parts. Para 3 of my note has conviction order. 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," the SG said.

One of the grounds on which the High Court had suspended Sengar's sentence was that he had already served the maximum punishment of 7 years imprisonment under the law.

The SG disputed this and said that the minimum punishment for the offence committed by Sengar is 20 years after the amendment to provisions on rape.

However, the Bench said that the amendment came into effect only after the commission of crime in the present case.

"The amendment was not there during the commission of offence," Justice Maheshwari remarked.

The SG further said that the High Court's finding regarding Sengar not being a 'public servant' was also irrelevant since the victim is a minor.

"Are you saying concept of public servant is irrelevant if the victim is a minor?" CJI Kant asked.

"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. Please take example when during course of duty if constable does such an act 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 Act and it is defined in borrowing that what IPC says shall be the definition... But a definition needs to be contextual unless the context as otherwise provides," SG Mehta argued.

"So you are saying public servant is someone who is enjoying a dominant position that point of time. You are saying 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," the Bench queried.

"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," the SG submitted.

"So you are saying 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," CJI Kant remarked.

The SG highlighted that Sengar has been held guilty of murdering the father of the victim.

"Please see section 42A of Pocso Act which shows when there is divergence between this law and any other law. The HC 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," the SG contended.

Senior Advocates Siddhartha Dave and N Hariharan appeared for Sengar and opposed CBI's plea.

They contended that Sengar was granted life imprisonment by the trial court only based on the definition of 'public servant'.

"Sentencing was granted only because he fell under definition of public servant," Dave said.

"A penal statute cannot import definition from another statute," Hariharan said in reference to how the definition of public servant in IPC was used for POCSO conviction by the trial court.

The Court after hearing the parties proceeded to stay the High Court order.

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