Delhi HC order suspending Kuldeep Singh Sengar's jail term stayed by the Supreme Court

New Delhi: Holding that the matter involves 'various substantial questions of law that require consideration', the Supreme Court on Monday stayed the operation of a Delhi High Court order, granting bail and suspending jail term of expelled BJP leader Kuldeep Singh Sengar in the 2017 Unnao rape case.

A special vacation bench of Chief Justice of India Surya Kant, justices JK Maheshwari and Augustine George Masih issued notice to Sengar on appeal filed by CBI and ordered that Sengar be not released from jail pursuant to the high court order.

The bench raised concern over the high court's interpretation of the word 'public servant' under section 5 of the Protection of Children from Sexual Offences Act (POCSO Act), which was the primary ground for suspension of Sengar's life term.


CJI Kant orally remarked that HC judges 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 only worried that a constable or a patwari is a public servant under the Act, but an elected member of legislative assembly, if this interpretation (by HC) is construed to be correct, will get exempted."

Representing CBI, solicitor general Tushar Mehta opened the argument, saying that the case "is a horrific case of rape of a child". He added HC has erred in holding that aggravated offence provisions under the POCSO Act were not attracted as Sengar could not be treated as a public servant. He argued offences under the POCSO Act are structured around the concept of penetrative sexual assault and aggravated penetrative sexual assault, and that aggravation arises when the offender is in a position of dominance over the child. Mehta said the term 'public servant' is not defined in the POCSO Act and therefore must be understood contextually.

CJI Kant verbally queried whether it was CBI's argument that the concept of being a public servant becomes irrelevant once the victim is a minor. In response, Mehta submitted that penetrative sexual assault on a child is itself an offence under POCSO, and that aggravation depends on circumstances, such as abuse of dominance. He submitted that later amendments enhancing punishment do not create new offences and therefore do not violate Article 20 of the Constitution.

CJI Kant orally remarked that notwithstanding the existing statute, a trial court can always factor in the 'growing trend' and the mind of legislature at the time of evaluating quantum of sentence. The CJI was referring to giving harsher sentences and 'befitting response' to those found guilty of committing gruesome crimes.

'Unfounded allegations'

The bench warned against public browbeating of the judiciary after one of the counsels submitted that unfounded allegations were levelled against the high court judge for suspending the jail term.

CJI orally remarked it "is unfortunate. We are not sitting in an ivory tower". He warned those "trying to take political advantage" of the situation.