New Delhi: In its 53-page order suspending the sentence of former BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case, the Delhi High Court prima facie said that the erstwhile lawmaker was not a “public servant”, as defined under the Protection of Children from Sexual Offences (POCSO) Act. Therefore, it said, he cannot be brought within the ambit of the charge of “aggravated penetrative sexual assault by a public servant” of a minor, which carries a jail term of 20 years or up to the remainder of one’s natural life.
On Wednesday, the rape survivor said she would move the Supreme Court against the Delhi High Court order. She also met Leader of Opposition Rahul Gandhi. The previous day, she was dragged away by police while protesting at India Gate.
A bench of justices Subramonium Prasad and Vaidyanathan Shankar noted that although the trial court had convicted Sengar under Section 5 of POCSO, he did not qualify as a public servant under it, despite having been an MLA at the time.
Sengar was convicted in 2019 under sections 5 and 6 of POCSO. Section 5 deals with aggravated penetrative sexual assault of a child by someone who holds authority or a position of power. Some categories of persons covered under this provision include police officers, members of the armed or security forces, and hospital staff or management among others. Section 6 outlines the punishment for offences under Section 5—a 20-year punishment that can extend to the remainder of their natural life.
The Delhi High Court said that with no aggravated offence made out, Sengar would fall in the ambit of POCSO’s Section 4, which penalises penetrative sexual assault with a 10-year imprisonment which can extend to life.
Sengar’s case was registered in 2018 under the unamended POCSO Act, which carried a punishment of a minimum of seven years in jail for penetrative sexual assault. Essentially, the court applied the pre-2019 POCSO to Sengar’s case since that was the law in force at the time of the incident, and noted that he had already served the minimum sentence under Section 4.
The court also made it clear that once released, Sengar cannot threaten the survivor or her mother, and has to report to the police station every Monday between 10 and 11 am. He must also stay in Delhi until the appeal is decided so that he is available in case he is found to be guilty, and refrain from coming within a 5 km of the victim’s residence.
Pointing out that the victim was still being provided with a CRPF cover even though the Supreme Court had withdrawn the security provided to her and her mother, the order stated: “This court expects that CRPF cover will continue in order to protect the victim/survivor.”
On Sengar, the order also said that a person cannot be kept in custody by the courts simply because there are apprehensions that the police or paramilitary may not do their job properly. “Such an observation or such a thought process would undermine the laudable work of our police/paramilitary forces.”
Who is a public servant?
Sengar argued that he had been in custody for more than seven years, which meant that he was eligible for at least the temporary suspension of his sentence, and claimed he was not a public servant while relying on the 1997 ruling of the Delhi HC in L. K. Advani’s case against the CBI.
In that case, the court had said the definition of a public servant is “imported” from the one given under Section 21 of the IPC, which says that judicial officers, judges, military personnel, government officials, panchayat members, Navy and Air Force officers, and even arbitrators fall under the definition of public servants.
The court also noted that although the phrase “public servant” is not defined under the POCSO Act, it has been defined in various other statutes like the IPC, CrPC, and the Juvenile Justice Act. Following this, the court went on to dissect the definition of the term under the IPC, which although covers the term government officers, does not mention MLAs or politicians in its ambit.
“Section 21 of the IPC shows that the definition of “public servant‟ does not include a Member of the Legislative Assembly. In this line, the apex court in A.R. Antulay, has specifically held that an MLA is not covered within the definition of “public servant‟ under the IPC,” the two-judge bench said.
Sengar’s defence & what court ruled
Firstly, Sengar argued that the prosecution’s case rested on their claim that the victim was a minor, but instead he said the school admission register revealed otherwise. Her school principal also admitted that the entry next to her name was “rubbed and rewritten”. He relied on hospital reports and documents from the government primary school where she had studied to say that she was born in 1998, and not in 2002 as she had claimed. By doing this, he sought to prove that the victim was over 18 at the time of the incident.
His second argument before the HC was that he was at the Unnao city office between 8 and 8.30 pm, when the incident occurred, which is about 14 km from his house, where the incident took place. Moreover, after the city office, he left for Kanpur to attend his cousin’s private function. To prove this, he relied on call detail records of his two mobile phones that showed his location away from the site of the incident. Besides this, he also flagged the delay in the rape allegation made by the victim, which he said was not before the magistrate but before the CM via a letter which came over two months after the incident, labelling this as an “afterthought”.
The victim’s counsel had argued that the investigation was faulty as Sengar was in a position of authority and basically bent the law to his advantage. On behalf of the survivor, he also argued that her life was in great danger as her father had already been killed and Sengar had been guilty of the offence of murder.
The court dismissed the victim’s counsel’s request to hear the appeal finally, rather than simply deciding the aspect of the suspension of his sentence.
It also noted that the victim’s lawyers had moved a plea for advancing further evidence in this case. To this, the two-judge bench said, “Recording of further evidence, as prayed for in the said application, would entail examination of witnesses, for which purpose, the matter would have to be referred back to the trial court. In such a situation, letting the appellant be in jail when he has already spent 7 years and 5 months in jail, would be violative of Article 21 (Right to life).”
Underlining that one cannot keep Sengar in custody because there is a threat perception to the victim, the court said it “is not a tenable argument to deny the benefit of Section 389 Cr.P.C” to him. The provision allows for suspension of sentence while the appeal is still pending, if certain conditions are met. The court also relied on the SC ruling in the Kashmira Singh case where it said that bail can be given to those sentenced to life imprisonment. “It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him,” the Supreme Court had ruled in the 1977 case.
Journey of the case
It started with a minor girl from Unnao accusing the then BJP leader Sengar of criminal intimidation, rape, and even penetrative sexual assault. A year before Sengar’s conviction, the CBI was handed over the investigation of the case. In June 2017, another FIR was filed by the victim alleging confinement for sexual exploitation and gang rape.
In the meantime, a case was also lodged against the victim’s father under the Arms Act for carrying a firearm without a licence and intentionally insulting someone with an intent to provoke breach of peace. In turn, the rape survivor’s mother had also lodged a case alleging assault on her husband.
In August 2019, the Supreme Court transferred all the cases, including the ones against the victim’s father, from a CBI court in Lucknow to a trial court in Delhi, which later convicted Sengar.
Why did the trial court convict Sengar
Besides it being proved that the victim was a minor, the trial court said that it was an “inescapable conclusion” that the investigating officer in this case did not conduct a fair investigation in the matter, leading to the survivor being disadvantaged, on account of the delay and the belated filing of the charge sheet.
The trial court had said that Sengar wasn’t even able to prove that he wasn’t present at his residence when the incident took place. A major question that came before the court for consideration was whether he was a public servant or not. Answering this question in the affirmative, the trial court had said a public servant is one who enjoys an official position, status and is mandated to perform certain duties under the Constitution.
In the overall context of the POCSO Act, the conclusion that emerged in the trial court was that if an MLA or elective representative is found to have committed an offence under POCSO, he would squarely fall under Section 5(c) of the Act.
Challenging this 2019 order of conviction, Sengar had approached the Delhi High Court.
(Edited by Viny Mishra)
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