The Supreme Court on Friday set aside a Delhi High Court order that had suspended the jail sentence of former Bharatiya Janata Party (BJP) legislator Kuldeep Singh Sengar in the 2017 Unnao rape case.
A Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi also directed the Delhi High Court to promptly decide on Sengar's appeal against his conviction in the case, preferably within two months.It further added that the High Court should reconsider Sengar's plea for a suspension of his jail sentence if the appeal is not decided soon.
The Court passed the order on an appeal filed by the Central Bureau of Investigation (CBI) challenging the High Court's decision to suspend Sengar's jail sentence and allow his release on bail while his appeal against his rape conviction remains pending.
"We allow the appeal. Set aside the impugned order. High Court shall make an endeavour to decide the main appeal within two months. In case appeal not likely to be heard, let a fresh order be passed concerning the application for suspension of sentence. No opinion expressed in merits. Nor the application for suspension of sentence be influenced by order of this Court. Let appropriate orders be passed preferably before commencement of summer vacations," the Court ordered.
During the hearing today, the Court also took a dim view of the Delhi High Court's earlier prima facie observation that the offence of aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act was not made out against Sengar.
Notably, under the POCSO Act, penetrative sexual assault becomes aggravated penetrative sexual assault if it is committed by a public servant.The High Court in its bail/ sentence suspension order had held that Sengar could not be strictly be termed a public servant or a person in “position of trust or authority” for aggravated penetrative sexual assault.
This was one of the primary grounds on which Sengar's sentence was suspended.The Supreme Court expressed strong disagreement with this approach."We do not endorse the hyper-technical conclusion of the High Court. This is a penal legislation which protects children from sexual exploitation," said Justice Bagchi."MLA is in a dominant position," added Solicitor General Tushar Mehta.
Meanwhile, Sengar's counsel Senior Advocate N Hariharan questioned whether the POCSO Act was applicable at all.
"I am in the position to show that the prosecutrix is not a minor. The AIIMS board says she was not a minor. All reports are in his favour still he is in jail," Hariharan told the Court.
The case concerns the rape of a 17-year-old girl. She was allegedly kidnapped and raped by Sengar between June 11-20, 2017. She was then sold for ₹60,000, after which she was recovered at the Maakhi police station.The survivor was thereafter continuously threatened and warned by the police officials against speaking out, as instructed by Sengar.
An FIR finally came to be recorded against Sengar for rape, kidnapping and criminal intimidation along with the provision of the Protection of Children from Sexual Offences Act (POCSO Act). He was arrested after an order of the Allahabad High Court.
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