Taking a prima facie view, and without going into the merits of the appeal by Sengar, a division bench of Justice Subramonium Prasad and Justice Harish Vaidyanathan said the offence under section 5 of the POCSO Act is not applicable in the present case as an MLA is not defined as a “public servant” under IPC, and therefore, cannot be sentenced for the remainder of his life.
Section 5 of the Protection of Children from Sexual Offences (POCSO) Act defines the offence of aggravated penetrative sexual assault by an authority figure, such as a police officer, a member of the armed or security forces, a public servant, or a person on the management or staff of a jail, hospital, educational institution, remand home, or other place of custody or care.
The court also noted that “public servant” has not been defined under POCSO Act, and is “only provided in IPC under Section 21 and there is no definition of Public Servant either in the CrPC, JJ (Juvenile Justice) Act or in IT Act.”
Notably, section 2(2) of the POCSO Act provides that the words and expressions used in the POCSO Act but not defined in it can be understood as they are defined in the IPC, CrPC, JJ Act and the Information Technology Act, 2000.
The trial court, which had awarded Sengar life sentence in 2019, had instead relied on the Prevention of Corruption Act to define who is a public servant, which included MLAs.
The HC held, “In the opinion of this Court, the definition of ‘public servant’ in the Prevention of Corruption Act would be of no use in the present case, for the reason that Section 2 of the POCSO Act does not include Prevention of Corruption Act.”
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The FIR, filed in 2018 at Makhi, in UP’s Unnao, had charged Sengar for offences under sections 3 and 4 (penetrative sexual assault and its punishment) of POCSO Act along with IPC provisions for rape.
The bench, noting that the court was not going into the merits of whether Sengar can be held guilty of section 3 of POCSO Act, said, “For the time being, applying the law as it stood then that is, before the amendment to the POCSO Act in 2019, the minimum punishment that a person can be given under Section 4 of the POCSO Act was seven years, which the Appellant has already undergone.”
The suspension of Sengar’s sentence comes pending a final decision on the appeal against his life sentence.
Sengar was sentenced to life imprisonment in December 2019 by a Delhi trial court that found him guilty under Section 376 (2) (rape) of the Indian Penal Code (IPC) and Sections 5(c) & 6 of the POCSO Act for raping a minor. The case was probed and prosecuted by the CBI.
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Section 6 of the POCSO Act provides for the punishment of the offence of aggravated penetrative sexual assault defined under Section 5 of the POCSO Act, entailing a minimum punishment of 20 years, which may extend to imprisonment for the remainder of natural life of the person.
Expressing disappointment at the HC’s verdict, the survivor’s counsel Mehmood Pracha told The Indian Express, “We will go to the Supreme Court against this order but with a better plan. We are not going to do this overnight. Is he (Sengar) deserving of mercy?”
While directing the DCP concerned of the area where the survivor resides to personally ensure and supervise the protection given to her, the court also imposed conditions on Sengar. According to the conditions, Sengar cannot come within 5 km radius of the residence of the victim, and shall stay in Delhi during the pendency of the appeal. The court also directed him not to threaten the survivor or her mother.
Notably, on April 3, 2018, the minor survivor’s father was allegedly framed in an illegal arms case and arrested. He died in judicial custody a few days later. In March 2020, Sengar was found guilty for the offence of culpable homicide not amounting to murder and was sentenced to 10 years’ imprisonment by the trial court for the custodial death of the minor’s father. Sengar has an appeal against this verdict pending before the Delhi HC where a plea for suspension of sentence also remains with no final decision on the same.
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Sengar, who is currently in prison, will not be out until a similar order suspending his sentence in the custodial killing case is issued by the Delhi HC. He has an appeal pending before the HC in this case as well.
Sengar, while seeking interim suspension of sentence earlier this year and interim bail in December 2024, had cited medical grounds, pointing that he is suffering from “diabetes mellitus type 2, bronchial asthma, has orthopedic and dental issues.” He was permitted to be out of prison for cataract surgery.
The survivor and the CBI had opposed his plea seeking suspension of sentence. The survivor, represented by advocate Pracha, had also cited threat perception. In July, Pracha had raised apprehensions regarding the safety of the survivor and had also stated that the victim is likely to be evicted from her rented accommodation.
In August, the Delhi Commission for Women had stepped in and told the court that the survivor herself expressed her desire to move out from the rented accommodation to other premises. DCW’s counsel had informed the court that “it is taking some time to complete the paperwork to shift the victim from the existing rented premises to the other premises.” The DCW had then assured the court that “all the steps will be taken to ensure that the victim is not left homeless and shelter-less.”
Before the SC, the survivor’s mother, alleging grave threat to the life and liberty of herself and her immediate family members, had sought recall of an apex court order of March 25 which removed CRPF security cover given to her family and other witnesses. The top court had earlier refused to withdraw the CRPF security cover to the rape survivor, saying there was still a perception of threat. It had, however, removed the same security cover given to her family members and other witnesses noting that the conviction had already taken place. In October, the SC had sought a response from Delhi police on the threat perception.
