Explained: Why Delhi HC released a former BJP MLA convicted of raping a minor

The Delhi High Court on Tuesday suspended the sentence of former Bharatiya Janata Party MLA Kuldeep Singh Sengar and granted him bail in the 2017 Unnao rape case involving a minor.

The court observed that, on the face of it, the facts of the case do not fulfill the conditions required to apply the stricter offence of “aggravated penetrative sexual assault” under section 5 of the Protection of Children from Sexual Offences Act. This was because Sengar does not fall within the definition of a “public servant”, it said.

Section 5 of the Pocso Act sets out conditions in which a “penetrative sexual assault” against a child is treated as a more “aggravated” offence. An aggravated offence is treated as serious because it is committed under special or severe circumstances that make the crime graver than usual.

Under the Pocso Act, an offence becomes “aggravated penetrative sexual assault” when it is committed by persons holding positions of authority, such as a public servant or police officer within their jurisdiction, members of the armed or security forces or staff of hospitals or prisons.

Under Pocso, an aggravated offence carries a minimum sentence of 20 years, which can be extended up to life imprisonment.

In 2019, the trial court convicted Sengar, noting that, since he was an MLA at the time of the incident, he qualified as a “public servant” under Pocso. This made the offence a serious one and attracted a harsher punishment.

Thereafter, Sengar was sentenced to “imprisonment for the remainder of his natural life”. His appeal against conviction and sentence has been pending before the High Court since 2020.

On Wednesday, the Delhi High Court rejected the trial court's reasoning. It held that Sengar, as an elected MLA at the time of the incident, could not be treated as a “public servant” under Pocso.

The trial court had held that, for the purposes of Pocso, a “public servant” is someone who holds “an official position, enjoys a certain status, and is required to perform duties under the Constitution as a functionary of the state”.

Taking this view, the trial court had observed that the term “public servant” should be interpreted in the overall context of Pocso and concluded that if an MLA or any elected representative commits such an offence, he would fall within the scope of Section 5(c) of the act.

Sengar's counsel argued that this finding was flawed.

The trial court had relied on the Supreme Court's decision in LK Advani v CBI (1997), which treated an MLA as a public servant under the Prevention of Corruption Act. But the defence submitted that this approach could not be applied in the present case involving the Pocso.

The high court agreed.

The court noted that Pocso does not define the term “public servant”. However, Section 2(2) of the Act, which explains certain legal terms used in the act, permits borrowing definitions that are not provided in the legislation “only from the Indian Penal Code, the Code of Criminal Procedure, the Juvenile Justice Act and the Information Technology Act”.

The court observed that the definition of the term “public servant” under Section 21 of the Indian Penal Code does not include MLAs as public servants.

The court clarified that the definition of “public servant” under the Prevention of Corruption Act was irrelevant in this case, since Section 2 of Pocso does not allow definitions to be borrowed from that piece of legislation.

Relying on the Supreme Court judgment in the AR Antulay case, which specifically held that an MLA is not included within the definition of 'public servant' under the Indian Penal Code, the bench concluded that Sengar cannot be considered as “public servant” and punished with the harsher punishments provided under Sections 5 and 6 of Pocso.

The court also rejected arguments that Sengar could still be brought under other aggravated provisions, including Section 5(p) of Pocso, which applies where a “person in a position of trust or authority commits sexual assault” on a child.

In the absence of any factual findings by the trial court establishing such a position of trust or authority, the high court held that it would be “inappropriate to invoke these provisions at the stage of deciding suspension of sentence”.

It also noted that an earlier attempt to add this charge had already been rejected by the trial court, and that order had not been challenged by either the Central Bureau of Investigation or the survivor.

The survivor's counsel raised serious concerns about her safety, stating that releasing Sengar on bail and suspending his sentence during the pendency of the appeal “would not only be against the law but would also jeopardise the well-being and safety of the survivor and her family”.

To support this concern, survivor's lawyer also pointed out that the appellant was named as an accused in a road accident case dated July 29, 2019. In that incident, the survivor was injured, and her aunt and her lawyer were killed.

Counsel added that Sengar was convicted for the death of the survivor's father, who was assaulted by his brother and associates in the presence of police officers. Sengar later used his “political clout” to prevent the survivor's father “from receiving medical treatment, which led to his death”.

Although this death is not directly related to the present case, the counsel pointed out that it was relevant in assessing whether, given Sengar's past conduct and political influence, suspending his sentence would endanger the victim's safety and force her to live under constant fear.

Though acknowledging these fears, the court held that they could not justify keeping Sengar in custody indefinitely due to these reasons.

“The courts cannot keep a person in custody, being apprehensive that the police/paramilitary may not do their job properly,” the bench observed. “Such an observation or such a thought process would undermine the laudable work of our police/paramilitary forces.”

The court reiterated that the responsibility of ensuring the survivor's protection lies with the state, not through the continued detention of the accused.

The court directed the Deputy Commissioner of Police of the area where the survivor is currently living “to personally ensure and supervise the protection given to the survivor during the pendency of the appeal”.

“State is also providing for the accommodation of the victim,” the court noted.

The court directed that the Delhi Commission for Women is responsible for making sure the survivor has adequate accommodation, and this arrangement should continue until it gives further instructions.

On a prima facie assessment, the court held that at the most, Sengar's conviction could fall under Section 3 read with Section 4 of Pocso, which deals with “penetrative sexual assault and prescribes punishment”.

At the time of the offence, the minimum sentence under Section 4 was seven years imprisonment. The court noted that Sengar had already spent more than seven years in jail.

“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,” the court observed.

Citing Supreme Court rulings, the bench held that continued detention in such circumstances would be “unjustified”.

The court also considered the likelihood of “prolonged delay in the disposal of the appeal”, particularly in light of pending applications seeking further evidence.

It held that keeping Sengar in custody despite having already undergone the minimum prescribed sentence would “infringe the guarantee of personal liberty under Article 21 of the Constitution”.

The court observed that the number of years “already spent in prison is a very major factor” when considering a suspension of sentence application. It noted that the appellant had already been in jail for about 7 years and 5 months, and “this could not be ignored”.

While suspending the sentence, the court imposed a set of strict bail conditions to ensure the appellant's availability for the appeal proceedings and to safeguard the survivor.

Sengar has been directed to “furnish a security of Rs 15 lakh along with three local sureties of the same amount” to the satisfaction of the jail authorities. He has been restrained from entering within a 5 km radius of the survivor's residence and has been ordered to remain in Delhi for the duration of the appeal.

The court also prohibited him from “threatening or contacting the survivor or her mother and directed him to deposit his passport” with the trial court. In addition, he must report in person to the local police station every Monday between 10 am and 11 am, the court directed.

Source: Scroll
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