Supreme Court Stays HC Order Granting Bail to Kuldeep Sengar in Unnao Rape Case

New Delhi: The Supreme Court on Monday (December 29) stayed the Delhi high court order suspending the life sentence of expelled Bharatiya Janata Party (BJP) leader and former Uttar Pradesh MLA Kuldeep Singh Sengar in the 2017 Unnao rape case, effectively blocking his release on bail.

A bench comprising Chief Justice of India (CJI) Surya Kant and Justices J.K. Maheshwari and Augustine George Masih issued notice on petitions challenging the high court’s decision and directed that Sengar remain in custody.

While intervening, the court observed that “there are substantial questions of law” involved and clarified that, in the peculiar facts of the case, the impugned order would not operate. The bench also directed that legal aid should be made available to the survivor, noting her statutory right to pursue remedies independently.

"We find that there are substantial questions of law. Issue notice. Ordinarily, when a convict/undertrial has been released on bail pursuant to TC/HC order, such order should not be stayed by this court without hearing such person. However, respondent is convicted and sentenced in another case under s.304 Part 2 IPC and is in custody in that case. We stay operation of impugned order in peculiar facts. Respondent shall not be released from custody pursuant to the impugned order. Victim has a statutory right to file separate SLP. She does not require liberty from this Court. If she requires free legal aid, SC Legal Service Committee shall provide free legal aid. She may file her appeal through her own counsel also," the bench ordered, according to a Live Law report.

The Delhi high court had, on December 23, suspended Sengar’s sentence on the ground that he had already undergone more than seven years and five months of imprisonment, during the pendency of his appeal against the December 2019 trial court conviction awarding him life imprisonment.

The Supreme Court was hearing two petitions, one filed by the CBI and another by advocates, challenging the high court’s reasoning that aggravated offence provisions under the POCSO Act were not attracted as Sengar could not be treated as a “public servant.” Sengar’s counsel opposed the CBI’s plea, contending that an MLA cannot be treated as a public servant for the purposes of aggravated offences under POCSO.

The bench flagged ambiguity in such an interpretation, observing that while a patwari or a police constable could fall within the scope of aggravated offences under POCSO, an MLA would be excluded. “If this interpretation is accepted, a constable or patwari will be public servant but MLA/MP will not be and get exempted,” CJI Kant said, expressing concern over the wider implications.

Appearing for the CBI, Solicitor General Tushar Mehta argued that the term “public servant” is not defined in the POCSO Act and therefore has to be understood contextually. He underlined that Sengar was in a dominant position over the minor survivor as he was a powerful MLA in the area at the relevant time and had been convicted under POCSO, apart from being found guilty in the killing of the victim’s father.

“POCSO Act to have overriding effect…we are answerable to the child who was 15 years old,” Live Law quoted Mehta as saying.

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