New Delhi: The Supreme Court Monday stayed the Delhi High Court order passed last week suspending the life sentence awarded to former BJP MLA Kuldeep Singh Sengar for raping a minor in Unnao in 2017.
Hearing the appeal filed by the Central Bureau of Investigation (CBI), the bench led by Chief Justice Surya Kant observed that the court ordinarily does not stay orders of lower courts when an undertrial or convict is released. Since Sengar continues to be in jail in connection with another case, the SC found it a fit case to stay the Delhi High Court order that gave him relief.
Concurring with the arguments of Solicitor General Tushar Mehta, the CJI observed that it was concerned with the HC’s interpretation of the law on who qualifies to be a public servant under the POCSO (Protection of Children from Sexual Offences) Act.
One of the main grounds to give Sengar relief was the HC’s view that he did not fall within the ambit of Section 5 of the Act that deals with aggravated penetrative sexual assault by a public servant.
In the absence of a clear definition of public servant, the HC drew from an earlier Supreme Court judgement to restrict the categories of government employees who can be covered under Section 5. And, this excluded an MLA or MP.
By virtue of this, Sengar came to be charged with a lesser offence, under Section 3 where a convict can be sentenced to jail only for seven years. As a consequence, since the former BJP MLA had spent more than seven years in jail, the court suspended his sentence.
Before the SC, the CBI strongly assailed the HC’s conclusive remarks on Sengar’s position as a public servant.
“Considering the intent, object and purpose of the POCSO Act, an elected representative who wields enormous power and is in a position of dominance over children will have to be treated as a ‘public servant’ for the purposes of the POCSO Act, particularly when the Respondent Accused was an MLA of the same constituency where the victim/survivor resided,” Mehta told the bench.
“Any other interpretation would create an incongruent situation vis-à-vis an elected representative and a police constable, for example. Any pedantic interpretation would result in a police constable held responsible for ‘aggravated offence’, but a Member of Parliament or a Member of Assembly would not fall within the rigours of ‘aggravated offence’,” he further argued.
The CJI refrained from addressing the HC’s observations and stated that all individuals, including judges, are “prone to error”.
“Please see this definition of public servant under POCSO… we are worried that a constable shall be a public servant under the Act but a member of the legislative (assembly) will be excluded,” CJI Kant observed orally.
The high court had observed that Section 5(c) of the POCSO Act allows life sentence for “penetrative sexual assault on a child” by a public servant, which did not apply to Sengar since he was not qualified, according to the definition of “public servant” under Section 21 of the Indian Penal Code (IPC).
Mehta argued that the definition of a public servant should be understood in a broader context rather than by the literal words of Section 21 of the IPC.
“He was an MLA of the area, a powerful one,” argued Mehta before the vacation bench of the SC.
Mehta also contended that the Delhi High Court had erred in not applying the 2019 amendment to the POCSO Act, which increased the minimum punishment to 10 years.
The HC had observed in its order that since the offence of rape under Section 3 of the POCSO Act under which Sengar was convicted predated the amendment, the maximum punishment under the Act would only be seven years. It thus ordered Sengar’s release instead of a jail term for the remainder of his life ordered by the trial court.
Mehta said this reasoning was flawed because the 2019 amendment did not make the act a criminal offence; it merely increased the minimum sentence to be imposed on a convict.
“Please see Section 42A of the POCSO Act, which shows (provisions to be applied) when there is divergence between this law and any other law. HC did not deal with this. This convict was found guilty of murdering the father of the party. He is still in jail for that. I urge the conscience of this court to stay this order for the sake of the child who was a victim,” Mehta argued.
The apex court has asked senior advocates N. Hariharan and Siddharth Dave, who were representing Sengar, to file a counter-affidavit within four weeks.
The SC also took cognisance of the point raised by Sengar’s counsel, that Delhi High Court judges were being targeted on social media and in the media in general.
“Very unfortunate. We are not sitting in ivory towers, and people try to take political advantage. Don’t try to browbeat the system. Just because some orders have been passed, you cannot bring all this to the streets,” the CJI remarked orally.
Mehta also condemned the criticism of the judges, calling them judges with unimpeachable integrity.
(Edited by Nida Fatima Siddiqui)
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This is happening to often. I feel like it’s probably a good time to push for judicial reforms