The Supreme Court on Friday set aside a Delhi High Court order suspending the prison sentence of former BJP legislator Kuldeep Singh Sengar in the 2017 Unnao rape case, observing that the order did not prima facie uphold the “overly technical view” taken by the apex court that Sengar could not be strictly termed a public servant for the offense of penetrative sexual assault under the Protection of Children from Sexual Offenses (POCSO) Act.
A bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalia Bagchi also directed the Supreme Court to immediately decide Sengar’s appeal against the conviction, preferably within two months. The Supreme Court added that if the appeal was not likely to be heard soon, the Supreme Court should reconsider Sinjar’s request to suspend the ruling before the start of the imminent summer vacation.
“During the course of the hearing, it becomes clear that in addition to the issues dealt with prima facie by the HC while deciding the application for suspension of judgment… it is found that there are several other issues to be considered,” the bench said in its order, while clarifying that it did not express any opinion on the merits of the order.
The order came on an appeal filed by the Central Bureau of Investigation (CBI) challenging the Delhi High Court’s decision last year to suspend Sengar’s jail sentence and grant him bail while awaiting his appeal against conviction in the rape case.
During the hearing, Solicitor General Tushar Mehta, representing the CBI, noted that the Supreme Court appeal has already been listed for hearing on May 25. Senior advocate N Hariharan, who represented Sengar, said he was not obstructing an early hearing of the appeal but argued that the question of whether MLA can be treated as a public servant under the POCSO Act requires consideration. “I will be detained on the basis that I am a public servant. This is an aspect that the Lords must consider,” Hariharan said.
Mehta replied that the issue is not just whether the MLA is a public servant in the traditional sense, but whether the elected representative holds a dominant position attracting the aggravated offense clause under the POCSO Act.
“The question here arises as to whether the MLA is a public servant,” Mehta said, adding that the MLA undoubtedly occupies a “dominant position.”
For its part, the court expressed its disagreement with the reasons adopted by the Supreme Court in suspending the ruling.
Read also: SC refuses to hear bail plea of Kuldeep Sengar in Unnao rape case
“We do not support the overly technical view taken by the Supreme Court. This is not just a penal legislation, but a legislation that protects male and female children, and more specifically, from sexual exploitation,” the bench observed.
At the same time, the Court noted the practical difficulty arising from the previous interim stay issued by the Supreme Court on the Supreme Court’s order suspending the ruling against Sinjar.
“Let us take the practical aspect into consideration as well. The Supreme Court suspended the ruling. We have stuck to it. Now there is a question as to whether the order is illegal, wrong etc. Now in this area…the Supreme Court will be reluctant to hear the main appeal,” the bench observed.
“When this state of mind exists, the Supreme Court will likely be reluctant to take up the matter. The HC may look to this court for an opinion. Our dilemma is that if we study the case closely, one of you may feel biased towards the opinion we ultimately give,” she added.
The bench ultimately decided to completely overturn the Supreme Court’s suspension of the sentence order and leave it to the Supreme Court to either decide the appeal expeditiously and also reconsider the application to suspend the sentence again if the appeal hearing is delayed.
In its implementing directives, the court ordered: “The Supreme Court shall use its best endeavors to decide the main appeal within two months. In the event that the appeal is not likely to be heard, a new order on the application for suspension of judgment shall be issued before the start of the imminent summer recess.”
The bench further clarified that neither the merits of the case nor the fresh application for suspension of sentence should be affected by the observations made by the Supreme Court.
The controversy arose after the Delhi High Court, by its December 23 order, suspended Sengar’s sentence on the grounds that the MLA may not fall within the definition of a “public servant” or a person in a “position of trust or authority” for the purpose of penetrative sexual assault under the POCSO Act.
The Supreme Court had immediately stayed the order on December 29, terming the situation “alarming” and observing that under this interpretation, even a constable or patwari could qualify as a public servant while an elected legislator would remain exempt.
Sengar was convicted in 2019 by a Delhi court under Sections 5 (c) and 6 of the POCSO Act, in relation to penetrative sexual assault by a public servant, and also under Section 376 (2) (i) of the Indian Penal Code dealing with rape of a minor. He was sentenced to life imprisonment in the rape case.
The former MLA is also serving a separate 10-year prison sentence in the custodial death case involving the father of the Unnao rape survivor.
