Doesn’t Fall Within Definition Of ‘Public Servant’ Under POCSO Act: Delhi High Court Suspends Sentence Of Kuldeep Singh Sengar In Unnao Rape Case
The Delhi High Court said that it cannot close its eyes to the fact that Sengar has already undergone about 7 years and 5 months under incarceration.
Delhi High Court, Kuldeep Singh Sengar
The Delhi High Court has suspended the sentence of Kuldeep Singh Sengar, former Member of Legislative Assembly (MLA) from the Bharatiya Janata Party (BJP) in Unnao Rape case.
The Court was hearing an Application filed by Sengar under Section 389(1) read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC), seeking regular suspension of sentence during the pendency of the Appeal.
A Division Bench comprising Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar held, “In the opinion of this Court, at this stage, being satisfied that (i) offence under Section 5(c) of the POCSO Act is not made out against the Appellant on account of him not falling within the definition of a ‘public servant’, (ii) only an offence under Section 3 of the POCSO Act would be made out, and (iii) looking at the fact that the Appellant has already undergone about 7 years and 5 months under incarceration, which is more than minimum number of years under Section 4 of the POCSO Act prior to its amendment in 2019, this Court is inclined to suspend the sentence of the Appellant. Needless to state, all the issues regarding alibi, age, etc. can be gone into detail at the time of hearing of the Appeal.”
The Bench said that the number of years already undergone in incarceration is a very major factor while considering an Application under Section 389 of CrPC and the Court cannot close its eyes to the fact that Sengar has already undergone about 7 years and 5 months under incarceration.
Senior Advocates N Hariharan and Manish Vashisht appeared on behalf of the Appellant, while SPP Anubha Bhardwaj appeared on behalf of the Respondent.
Brief Facts
As per the prosecution case, on June 4, 2017, at about 8:00 p.m., one ‘SS’ who was the accused no.1 enticed and induced the victim/survivor to accompany her, on the pretext of providing a job at the residence of the Appellant-Kuldeep Singh Sengar. The victim was taken by ‘SS’ inside the Appellant’s house from the rear portion of the property where there were no security guards, whereby the Appellant then alleged to have forcibly raped her. The victim did not reveal the incident to anyone as she was allegedly threatened by the Appellant, to the effect that if she spoke anything about it, some untoward harm would entail. However, the victim later came to confide in her uncle who then relayed the facts to his sister-in-law being the victim’s mother.
Hence, an FIR was registered but since the local police of Unnao, Uttar Pradesh did not take any action, the victim’s mother was constrained to approach the Additional Sessions Judge, alleging that the Appellant threatened the victim to kill her and her family if the details of the incident were revealed to anyone. The Appellant was convicted for the offences punishable under Sections 376, 363, and 366 of the Indian Penal Code, 1860 (IPC) read with Sections 5(c) and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to undergo life imprisonment for the remainder of life, along with a fine of Rs. 25 lakhs and an additional compensation of Rs. 10 lakhs payable to the victim’s mother. Being aggrieved, the Appellant approached the High Court.
Reasoning
The High Court in view of the above facts, observed, “… the Appellant also cannot come within the four corners of Section 5(p) of the POCSO Act, as being in a position of trust or authority in relation to the Victim/Survivor, as there is no foundational basis, argument or finding by the learned Trial Court to this extent and, therefore, at the time of considering an application under Section 389 of the Cr.P.C, it would not be appropriate for this Court to consider these arguments.”
The Court was of the view that for the purpose of suspension of sentence, the Appellant cannot be brought into the ambit of “aggravated penetrative sexual assault” under Section 5 of the POCSO Act, punishable under Section 6 of the POCSO Act, or under Section 376(2) of the IPC, which provides for the punishment of imprisonment for remainder of his natural life.
“This being a prima facie observation, this Court does not deem it fit to go into the merits of the case as to whether the Appellant could be then held guilty of offence under Section 3 of the POCSO Act or not. However, for the time being, applying the law as it stood then that is, before the amendment to the POCSO Act in 2019, the minimum punishment that a person can be given under Section 4 of the POCSO Act was seven years, which the Appellant has already undergone. The Appellant was sentenced for the remainder of his life and as on 30.11.2025, he has spent about 7 years and 5 months under incarceration, which is more than the minimum punishment prescribed under Section 4 of the POCSO, as it existed at the time when the offence was committed”, it added.
The Court clarified that the CRPF cover will continue in order to protect to the victim. It further remarked that the Courts cannot keep a person in custody being apprehensive that the police/paramilitary may not do its job properly, as such an observation or such a thought process would undermine the laudable work of our police/paramilitary forces.
“The concerned DCP of the area where the Victim is currently residing, is directed to personally ensure and supervise the protection given to the Victim/Survivor during the pendency of the Appeal. The State is also providing for the accommodation of the Victim. The DCW is responsible to ensure that the Victim is provided with sufficient accommodation and such arrangement is directed to be continued till further orders. In any way, the appeal is in this Court and it is always open for the Victim to approach this Court, if required”, it directed.
Accordingly, the High Court disposed of the Application, suspended the sentence of the Appellant, and directed him to furnish a security in the sum of Rs. 15 lakhs with three sureties of the like amount to the satisfaction of the concerned Jail Superintendent.
Cause Title- Kuldeep Singh Sengar v. Central Bureau of Investigation (Neutral Citation: 2025:DHC:11860-DB)
Appearance:
Appellant: Senior Advocates N Hariharan, Manish Vashisht, Advocates SPM Tripathi, Amit Sinha, Deepak Sharma, Rahul Poonia, Ambuj Singh, Ashish Tiwari, Aishwarya Senger, Gaurav Kumar, Saurabh Dwivedi, Punya Rekha, Angara, Vasundhara N, Aman Akhtar, Sana Singh, Vasundhara Raj Tyagi, Arjan Singh Mandla, Gauri Ramachandran, Aishwarya Sengar, Vedansh Vashisht, and Swapan Singhal.
Respondent: SPP Anubha Bhardwaj, Advocates Vijay Mishra, Ananya Shamshery, Urvi Mohan, Mehmood Pracha, Sanawar, Jatin Bhatt, Kshitij Singh, and Kumail Abbas.
