In a significant development, the Supreme Court of India on Monday intervened to stay a Delhi High Court order that had granted bail to former Bharatiya Janata Party (BJP) MLA Kuldeep Singh Sengar. Sengar was convicted for the rape of a minor girl in Uttar Pradesh's Unnao district. The apex court's decision ensures that the convicted former legislator will not be released from prison while his appeal against the conviction is pending.
SC Bench Questions Legal Interpretation
A bench led by Chief Justice of India Surya Kant, and comprising Justices J K Maheshwari and A G Masih, departed from the general practice of not interfering with high court bail orders. The bench stated that the case against Sengar and the manner in which the High Court granted him bail raises several critical questions of law that require deeper consideration.
"Keeping in mind these peculiar circumstances, we deem it appropriate to stay the operation of the impugned order dated December 23 passed by the High Court. Consequently, the respondent (Sengar) shall not be released from custody," the bench ordered.
Dominant Position of a Public Servant Under Scrutiny
Appearing for the Central Bureau of Investigation (CBI), Solicitor General Tushar Mehta argued that the High Court failed to appreciate a crucial point. He contended that Sengar, being an MLA and thus a public servant, was in a dominant position, and therefore, his offence of raping a minor must be construed as an aggravated form of sexual assault under both the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act.
Mehta emphasized that such an aggravated act under POCSO warrants stringent punishment, which under IPC mandates a minimum imprisonment of 10 years and can extend to life imprisonment. When Sengar's lawyers questioned the CBI's stance on his status as a 'public servant', the CJI-led bench expressed concern. "We are worried that if the proposition advanced by the convict is accepted then a patwari will be considered a public servant but not MPs and MLAs," the bench remarked.
The Supreme Court has sought Sengar's response to the CBI's appeal and scheduled the next hearing for January 20.
Broader Implications for POCSO Act
Solicitor General Tushar Mehta elaborated on the legal principle, stating that a person may not be a 'public servant' under the Prevention of Corruption Act but could still be considered one under the POCSO Act if they hold a dominant position. "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 Act," Mehta argued. He highlighted that Sengar was the MLA of the very constituency where the survivor resided.
The bench acknowledged that it ordinarily does not stay bail orders without hearing the convicted person. However, it made an exception due to the unique facts and circumstances of this case. The court noted that Sengar is also separately convicted and sentenced in a case under Section 304 Part II of the IPC (culpable homicide not amounting to murder) related to the Unnao case, and remains in custody for that as well.
In a supportive move, the Supreme Court also affirmed the rape survivor's statutory right to file a separate appeal against the High Court's bail order. The court directed the Supreme Court Legal Services Committee to provide free legal aid to her if required.
During the proceedings, Sengar's counsel pointed out that derogatory remarks were being made against the two High Court judges who granted the bail. Both the CBI and the Supreme Court bench strongly condemned these personal attacks. The bench praised the judges as "among the finest in the country with unimpeachable integrity," while also noting that even the most brilliant judges can commit errors. "These two HC judges are among the finest. But we (judges) are all prone to committing errors," CJI Surya Kant observed.
This ruling by the Supreme Court puts a spotlight on the interpretation of power and accountability under the POCSO Act and keeps a convicted former politician behind bars as the legal battle continues.
