The Delhi High Court suspended the life sentence on Tuesday. The CBI will likely appeal against this decision.
In the second appeal, meanwhile, arguments have concluded, and the court has reserved its verdict. This means Sengar cannot be released from jail unless the court decides to suspend the sentence in the second case as well.
Sengar was an MLA. Why did HC say he was not a public servant?
A Delhi trial court, which had awarded the life sentence to Sengar, had found him guilty under Section 5(c) of the POCSO Act.
Section 5(c) defines the offence of ‘aggravated penetrative sexual assault’ when a “public servant commits penetrative sexual assault on a child”.
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The trial court had ruled that Sengar qualifies as a ‘public servant’, relying on the term’s definition under the Prevention of Corruption Act (PCA) which includes MLAs. But the Delhi High Court opined that it is the IPC definition of ‘public servant’ that must be considered, and not the PCA’s.
To substantiate this, the High Court noted that while the POCSO Act does not specifically define ‘public servant’, it allows for the use of definitions under the IPC, CrPC, Juvenile Justice Act and the Information Technology Act.
The court, thus, considered the definition of public servant under Section 21 of the IPC and made a prima facie observation that Sengar cannot be brought under the ambit of the punishment of life sentence for the offence under section 5 of the POCSO Act.
These are some of the persons this Section includes — government officers, commissioned officers in defence forces, judges, police officers, officers of court including liquidators or court commissioners, and arbitrators.
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It also includes the following — any person in the service or pay of the government; any person who is remunerated by the government by fees or commission for a public duty; and any person in the service or pay of a local authority, or a corporation established by or under a Central, Provincial or State Act.
The Supreme Court has interpreted that legislators do not qualify as being in the service or the pay of the government.
What other reasons did the court state?
While suspending the sentence pending an appeal before an appellate court (such as the Delhi HC in this case), the court usually takes various factors into consideration: the likelihood of acquittal or/and if the appeal is unlikely to be heard in the near future and speedily disposed of; the gravity of the offences; accusations made against the convict; and criminal history. The court may also factor age and medical reasons to suspend a sentence.
In this case, the Delhi High Court also observed that whether section 3 of the POCSO Act (penetrative sexual assault of a minor), will hold will require going into the merits of the case, which will be at the stage of deciding the appeal.
Even assuming Section 3 is applicable, the punishment prescribed under it in Section 4, as it stood at the time of the offence (which was prior to the 2019 amendments to the POCSO Act which provided for stricter punishment), the minimum punishment that a person can be given under Section 4 of the POCSO Act would be seven years, the court reasoned.
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Sengar has already undergone a sentence of 7 years and 5 months, which the court took into consideration.
What about the survivor’s safety?
A key aspect in Sengar’s case has been the security threat the survivor and her family has reiterated repeatedly over the years.
In August 2019, the Supreme Court expressed strong displeasure over the handling of the Unnao rape case after a road crash which left the survivor and her lawyer critically injured and her two aunts dead. The top court had transferred all cases related to the matter from Uttar Pradesh to Delhi and ordered that the trial be conducted on a day-to-day basis.
It also ordered interim compensation of Rs 25 lakh for the victim and CRPF security cover for her, the family and their lawyer.
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Just days before the SC’s order, the survivor’s family had written to the then CJI Ranjan Gogoi, seeking the court’s intervention and complaining about the threats being issued to them.
Sengar, in 2019, was also directed to be shifted to Delhi’s Tihar jail from a UP jail. Even in the trial court’s verdict sentencing Sengar to life, the judge had acknowledged that the survivor was pitted against a powerful person.
The trial court judge had observed: “When she met with the Chief Minister (Yogi Adityanath) there was a tirade unleashed upon the girl and her family members… multiple cases were filed against the family members of the girl… the prints of Kuldeep is quite visible.”
In fact, the Delhi High Court itself had weighed this threat perception while refusing to suspend the 10-year sentence of Sengar’s brother, Jaideep Singh Sengar, in January 2024. Jaideep Sengar was convicted over the killing of the survivor’s father.
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While noting that Jaideep Sengar had only served three years in prison by then, Justice Swarana Kanta Sharma had factored in “the impact of public confidence in courts” as a ground to refuse the sentence suspension. The court had also detailed the repercussions the survivor and her family had to face over the years.
However, the latest judgement by the division bench of the Delhi High Court takes a different route.
The bench recorded: “…the argument of keeping the Appellant (Sengar) in custody because of threat perception to the Victim/Survivor, in the opinion of this Court is not a tenable argument to deny the benefit” of suspension of sentence.
Noting that the survivor has CRPF cover as a security measure as on date, the bench recorded: “This Court expects that CRPF cover will continue in order to protect the Victim/Survivor… The Courts cannot keep a person in custody being apprehensive that the police/paramilitary may not do its job properly.”
