Opinion Kuldip Singh Sengar isn’t a ‘public servant’? What Delhi HC decision means for power and impunity

At the heart of the HC’s decision lies its prima facie conclusion that Sengar may not fall within the category of a “public servant” for the purposes of Section 5(c) of the Protection of Children from Sexual Offences Act, 2012 (the “POCSO Act”). Section 5(c) classifies sexual assault committed by a public servant as an aggravated offence and therefore liable to imprisonment for the remainder of the accused’s natural life. The trial court had relied on this provision while sentencing Sengar. The High Court, however, took the view that an elected legislator does not qualify as a “public servant” as defined by the Indian Penal Code, 1860 (even after the adoption of the Bharatiya Nyaya Sanhita, criminal cases registered or crimes committed before July 1, 2024, continue to be governed and tried under the provisions of the IPC).

The High Court’s reasoning rests on Section 2(2) of the POCSO Act, which provides that words not defined therein shall carry the meanings assigned to them under the IPC, the Code of Criminal Procedure, the Juvenile Justice Act, or the Information Technology Act. Since the Prevention of Corruption Act, 1988, is not included in this list, the Court held that the IPC definition of “public servant” must govern.

Under Section 2 (viii) of the Prevention of Corruption Act 1988, a Public Servant is defined as “any person who holds an office by virtue of which he is authorised or required to perform any public duty”. By this definition, Sengar would certainly be considered a public servant and, therefore, liable for having committed an “aggravated offence” under the POCSO Act. It is a trite position that courts cannot rewrite legislation, and this Court could not have included the Prevention of Corruption Act in the POCSO Act. Nevertheless, it ought to have been more careful in narrowing the interpretation of an Act that is meant to be a welfare legislation to prevent sexual offences against children.

The implication of this reasoning is stark: Elected officials may now fall outside the scope of “aggravated offences” under the POCSO Act merely because they do not meet the IPC’s narrower definition of a public servant. This interpretation risks defeating the very object of Section 5(c) and opens a significant loophole — one that can only be addressed either through prolonged appellate litigation or equally time-consuming legislative amendment.

This finding was central to suspending Sengar’s sentence and granting him regular bail. Once the applicability of the aggravated provision was placed in doubt, the Court concluded that the foundation for the enhanced punishment was arguable and that the life sentence could be suspended while the appeal was heard. The court also took into account the length of time Sengar had already spent in custody and observed that continued incarceration could cause hardship if the conviction or sentence were ultimately modified.

Formally, the Court emphasised that suspension of sentence does not amount to an assessment of guilt. It clarified that the conviction would be examined in full at the final hearing and imposed bail conditions, including restrictions on movement and contact with the survivor and witnesses.

Despite these caveats, the order ventures into territory closely connected with the merits of the appeal. Even when framed as prima facie or tentative, observations on the applicability of aggravated provisions or on evidentiary questions are not inconsequential. Such findings can shape the trajectory of the appeal itself and underscore why proceedings under Section 389 are generally expected to avoid engagement with issues that properly belong to final adjudication.

In Sengar’s case, reliance was placed on issues such as age determination, alleged infirmities in school and medical records, and perceived inconsistencies in testimony — matters that appellate courts ordinarily reserve for final consideration.

The unease surrounding the order is heightened by the context in which it arises. Sengar stands convicted under the IPC and the POCSO Act following a prolonged and closely monitored process, including transfer of investigation to the CBI and trial under judicial oversight. The Unnao case became emblematic of the structural challenges faced by survivors when the accused wields significant political power.

The Court also rejected the survivor’s plea that Sengar’s political influence poses an ongoing threat to her and her family. It reasoned that the survivor has been provided protection by the Central Reserve Police Force and that any perceived inadequacy in such protection cannot, by itself, justify denial of bail. While the Court imposed conditions requiring Sengar to maintain a five-kilometre distance from the survivor and to remain confined to New Delhi, these safeguards do little to address the realistic possibility of intimidation through intermediaries, particularly in cases involving entrenched political influence.

The significance of the order thus extends beyond its immediate legal reasoning. In a case long associated with questions of power, impunity, and accountability, the suspension of a life sentence on the basis of a narrow statutory interpretation is bound to be closely scrutinised. How appellate courts exercise discretion under Section 389, especially in cases involving grave offences and enhanced punishments will shape not only individual outcomes but also public confidence in the criminal justice system itself.

The writer is a lawyer practising in the Delhi High Court