What CBI argued in Supreme Court against Kuldeep Singh Sengar’s life sentence suspension

Before Supreme Court, CBI, represented by Solicitor General Tushar Mehta, called the Delhi HC order “erroneous”.

2. At the time of sentencing on December 20, 2019, the trial court convicted the accused under Section 376(2) of IPC in light of Section 376(2)(i) (within the limits of the police station to which such police officer is appointed), which was undisputably on the statute book on the date of the offence.

3. Absolutely clear that the convict is held guilty under Section 376 (punishment for rape) of the IPC.

4. The convict, having been convicted for “rape”, the only question that would arise would be the difference between Section 376(1) (exception) and 376(2) of IPC.

5. Trial court’s specific finding that the survivor was less than 16 years of age justifies the sentencing under Section 376(2)(i)(commits rape on a woman when she is under sixteen years of age) of IPC. The punishment for Section 376(2)(i) is that the convict “shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life”.

6. Once the conviction is recorded for the commission of “rape” as defined under Section 375 of the IPC, the distinction between Section 376(1) and 376(2) pales into insignificance for the purpose of deciding suspension of sentence. This is so because even under Section 376(1), the punishment is “not less than ten years but which may extend to imprisonment for life”.

7. Once the finding of the commission of “rape” is recorded, the sentencing under Section 376(1) or 376(2) IPC will have no relevance in deciding the suspension of sentence.

8. The conviction is for life, which shall mean imprisonment for the remainder of the convict’s life. Even if this is ignored (only for argument’s sake and for the question of suspension of sentence), one thing is undeniable: the convict is sentenced to life.

9. The high court order has chosen not to advert to this issue, though it goes to the root of the decision.

10. The high court order recorded that the trial court convicted the appellant for the offence under Section 376(2) of the IPC as well as Section 5(c), punishable under Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act but only proceeds on Sections 5 and 6 of the POCSO Act and erroneously records a finding that, since Sengar has already undergone more than 7 years in prison, he is entitled to suspension of sentence since it is “more than the minimum number of years under Section 4 of the POCSO Act before its amendment in 2019.”

11. The high court’s order proceeds on the interpretation of the term “public servant” as used in Section 5(c) (whoever being a public servant commits penetrative sexual assault on a child) of the POCSO Act and gives a very restricted and pedantic meaning to the said term, merely based upon its definition under
Section 21 (including government officers, police, military personnel, judges, and anyone performing public duty or managing public funds/property, as well as people involved in elections or holding certain statutory offices) of the IPC, ignoring the object of the POCSO Act.

On Monday, a bench headed by Chief Justice of India Surya Kant said that if it were to accept the high court’s interpretation that Sengar does not fall within the definition of a public servant, then it would mean that a police constable would be a public servant, but an MLA is not.