Unnao rape case: SC stays suspension of Kuldeep Sengar’s life sentence
Apex court issues notice on CBI appeal, flags key legal questions on POCSO scope, public servant definition and suspension of sentence
The Supreme Court on Monday (December 29) stayed the Delhi High Court order, which suspended the life sentence of expelled BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case of a minor girl.
The top court also issued notice to Sengar on an appeal of the CBI against the Delhi High Court order, reported ANI.
The Delhi HC, on December 23, suspended the life sentence of Sengar in the 2017 Unnao rape case, noting that he had already undergone seven years and five months of imprisonment. The suspension was granted till the pendency of his appeal against the December 2019 trial court verdict convicting and sentencing him in the case.
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However, Sengar will continue to remain in jail as he is also serving a 10-year sentence in connection with the custodial death of the survivor’s father. His appeal in that case is also pending, in which he has sought suspension of sentence, citing the length of time already spent in custody.
Court cites peculiar facts
A three-judge vacation bench headed by Chief Justice of India Surya Kant, along with Justices JK Maheshwari and Augustine George Masih, while hearing the CBI’s plea challenging the high court order, observed that 59-year-old Sengar should not be released from custody.
“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, reported Bar and Bench.
POCSO scope under scrutiny
As per the report, 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 lawmakers.
“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 Assembly will be excluded,” the top court remarked.
Amendment timing flagged
During the hearing, Solicitor General Tushar Mehta, appearing for the CBI, described the matter as a “very horrific” case, saying, “We are answerable to the girl.”
He also opposed the high court’s decision to suspend Sengar’s sentence, which was based on the observation that Sengar had already served the maximum punishment of seven years’ imprisonment prescribed under the law.
Mehta argued that following amendments to rape laws, the minimum punishment for the offence committed by Sengar is 20 years. The apex court, however, noted that the amendment came into force only after the crime in the present case was committed. “The amendment was not there during the commission of the offence,” the bench observed.
Also read | Unnao rape survivor moves CBI against investigating officer, seeks FIR
Mehta further objected to the high court’s finding that Sengar, who was an MLA at the time of the offence, could not be treated as a public servant for prosecution under the Protection of Children from Sexual Offences (POCSO) Act.
Delhi HC sets conditions
Earlier, while suspending the sentence, the Delhi High Court imposed several conditions and directed Sengar to furnish a personal bond of Rs 15 lakh along with three sureties of the same amount. The court also restrained him from entering within a five-kilometre radius of the survivor’s residence in Delhi and from threatening the survivor or her mother, warning that any violation would lead to cancellation of bail.
The rape case and other connected matters were transferred from a trial court in Uttar Pradesh to Delhi on the directions of the Supreme Court on August 1, 2019.