The Supreme Court on Monday stayed the release of former BJP lawmaker Kuldeep Singh Sengar in the Unnao rape case, six days after Delhi High Court suspended his life term on the hyper-technical grounds that a lawmaker is not a “public servant”.
Though granted bail on December 23, Sengar had remained in jail because he is serving a parallel 10-year term for culpable homicide in connection with the death of the rape survivor’s father.
The apex court orally faulted the high court’s reasoning that Sengar was not a “public servant” within the meaning of Section 5 of the Pocso Act under which he had been convicted and sentenced.
Section 6 of the Pocso Act makes rape by a “public servant” an “aggravated offence”, entailing a minimum 20 years of imprisonment against a 10-year minimum
for other people. The maximum punishment for both kinds of convicts is, however, a life term.
“We are only worried by the high court reasoning because if this interpretation is accepted, there will be cases where a constable or a village patwari will be a public servant for the purpose of committing this offence, but an elected MLA or MP will be exempted,” the bench of Chief Justice Surya Kant, Justice J.K. Maheshwari and Justice A.G. Masih orally remarked.
However, the bench described Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar of Delhi High Court — who had suspended Sengar’s sentence — as the “finest judges”. Chief Justice of India Kant said that even the finest judges can make mistakes.
The Delhi High Court order had drawn severe criticism from various political parties and civil rights activists apart from the survivor and her family, who claimed a threat to their lives if Sengar was released.
The apex court ordered that Sengar “shall not be released” after hearing solicitor-general Tushar Mehta, representing the appellant CBI, and senior advocates Sidharth Dave and V. Hariharan for Sengar.
It said that it normally did not stay an order passed by a high court or a trial court without hearing the accused. But, it underlined, Sengar had also been convicted in connection with the death of the survivor’s father, and had
appealed for bail in that matter, too.
“However, the instant matter revolves around certain unique facts and circumstances, wherein the respondent-convict (Sengar) is also separately convicted and sentenced in a case under Section 304 Part 1 (culpable homicide not amounting to murder) of the IPC and is consequently still in custody,” the written order said.
“We are informed that in such proceedings also, the respondent-convict has applied for bail, and after hearing the arguments, the order is said to have been reserved by the concerned court.”
It added: “Keeping in mind these peculiar circumstances, we deem it appropriate to stay the (high court order)…. Consequently, the
respondent shall not be released.”
The bench, which issued a notice to Sengar and posted the next hearing to January 20, said there were “various substantial questions of law which arise for consideration in the (CBI’s) special leave petition”.
According to the CBI, the high court only considered Sengar’s conviction and sentencing under the Pocso Act, ignoring his conviction also under the rape law.
The survivor (face blurred) outside the Supreme Court on Monday. PTI
The agency has argued that the high court erroneously recorded a finding that, since Sengar had already spent more than seven years in prison — which was “more than minimum number of years under Section 4 of the POCSO Act prior to its amendment in 2019”— he was entitled to a suspension of his sentence.
However, the CBI has contended, the trial court also convicted Sengar under Section 376(2)(i) of the erstwhile Indian Penal Code (IPC), for which the punishment “shall not be less than ten years, but which may extend to imprisonment for life”.
The agency argues that the high court order “proceeds on the interpretation of the term ‘public servant’ as used in Section 5(c) of the POCSO Act and gives a very restricted and pedantic meaning to the said term, merely based upon its definition under Section 21 of the IPC, ignoring the object of the POCSO Act”.
Sengar was MLA from Bangarmau in Unnao, Uttar Pradesh, when the crimes were committed in his constituency in 2017. On the rape survivor’s plea, the Supreme Court had shifted the trials to Delhi, thereby bringing the matter under the purview of Delhi
High Court.
Sengar, expelled from the BJP, is an accused also in the case of the murder of the survivor’s aunt and lawyer, being tried in a Delhi court.