The current order of the Delhi Excessive Court docket suspending the sentence of ex-BJP MLA Kuldeep Singh Sengar within the Unnao rape case is problematic for the way wherein it ignored and trivialised the gravity of the offence, whereas following a textual interpretation of the phrase ‘public servant’.
In essence, the Court docket famous {that a} sitting MLA doesn’t qualify as a “public servant” inside the that means of Part 21 of the Indian Penal Code. On this reasoning, it concluded that Part 5(c) of the Safety of Youngsters from Sexual Offences Act, 2012, which treats penetrative sexual assault by a public servant as an aggravated offence, is inapplicable. The Court docket additional held that Part 376(2) IPC, which additionally treats rape by a public servant as an aggravated kind, wouldn’t apply. Consequently, it dominated that the sentence of imprisonment for the rest of life imposed below these provisions couldn’t be sustained.
The Court docket’s interpretation that an MLA just isn’t a “public servant” for the needs of Part 5(c) of the POCSO Act might look like legitimate on a pure textual and technical studying (POCSO Act adopts the definition given within the IPC). Nevertheless, even when we ignore the applying of Part 5(c), Sengar can nonetheless be thought to be responsible of penetrative sexual assault of a minor below Part 4 of the POCSO Act, which is punishable with life imprisonment. Likewise, life imprisonment below Part 376 IPC can also be attracted for the offence of rape.
Even accepting the Court docket’s view concerning the applying of Part 5(c) of the POCSO Act, the grant of suspension seems tough to reconcile with well-settled rules governing suspension of sentence in instances involving life imprisonment for grave sexual offences.
Case background and context
The Unnao rape case of 2017 just isn’t an extraordinary prosecution. The offence got here to be registered solely after sustained public protests by the sufferer, together with a drastic act of making an attempt self-immolation outdoors the Chief Minister’s dwelling. Sengar was arrested in 2018 solely after the intervention of the Allahabad Excessive Court docket which had noticed, “The disturbing function of the case is that the regulation and order equipment and the federal government officers had been instantly in league and below the affect of Kuldeep Singh.”
The case had a transparent sample of sufferer intimidation by abusing official powers and political leverage. Relations of the survivor had been focused after the incident. The sufferer’s father was arrested on questionable grounds, assaulted whereas in custody, and later died. In March 2020, the trial courtroom sentenced Sengar to 10 years imprisonment below Part 304(Half II) IPC for the culpable murder of the daddy of the survivor.
In 2019, following an incident of a truck colliding in opposition to a automobile wherein the survivor and her members of the family had been travelling to the trial courtroom – which was then suspected to be a staged accident – the Supreme Court docket transferred the trial of the instances to Delhi from Uttar Pradesh. A Delhi Court docket later dominated out foul play within the accident.
In December 2019, the trial courtroom, whereas convicting and sentencing Sengar, recorded that the survivor was threatened to maintain quiet and her household was systematically focused to silence her.
This background ought to be central to any judicial evaluation of whether or not a convicted particular person ought to be enlarged on bail by suspending a life sentence. Treating the current case as a routine enchantment in opposition to conviction ignores the very circumstances that made judicial intervention needed within the first place.
Suspension of sentence in life imprisonment instances
The regulation on suspension of sentence after conviction is obvious. In instances with fixed-term sentences, suspension of sentence is the norm. Nevertheless, in instances involving life imprisonment, suspension is an exception. The Supreme Court docket has constantly held that when an individual has been convicted and sentenced to life imprisonment, the presumption of innocence not operates.
Just lately, the Supreme Court docket severely criticised the Jharkhand Excessive Court docket for casually suspending the sentence in a homicide case. In that judgment(Chhotelal Yadav v State of Jharkhand), referring to varied precedents, the Supreme Court docket noticed : “The one consideration that ought to weigh with the appellate courtroom whereas contemplating the plea for suspension of sentence of life imprisonment is that the convict ought to be ready to level out one thing very palpable or a really gross error within the judgment of the Trial Court docket on the premise of which he is ready to make good his case that on this floor alone, his enchantment deserves to be allowed and he be acquitted.”
The important thing level right here is whether or not the inapplicability of Part 5(c) can alone be a floor for setting apart the acquittal. In Sengar’s case, even when Part 5(c) just isn’t relevant, there are robust grounds for conviction below Part 4 of the POCSO. The Excessive Court docket must have thought-about whether or not the inapplicability of Part 5(c) would result in his full acquittal within the case.
Gravity of offence and position of the accused
The foremost flaw within the Excessive Court docket’s judgment is that it doesn’t think about whether or not a case is made out for conviction below Part 4 of the POCSO. The Excessive Court docket says that there is no such thing as a have to enter into such points since Part 5(c) is anyway discovered to be inapplicable(See para 35 of the judgment).
The Supreme Court docket has constantly held that the gravity of the offence and the position of the accused are main components to be thought-about whereas suspending sentence. (See current judgment in Rajesh Upadhyay v State of Bihar, Vijay Kumar v. Narender & Ors., (2002) 9 SCC 366.)
Additionally, the Excessive Court docket needs to be prima facie glad that the convict has a good probability to achieve his enchantment.
In Omprakash Sahni v. Jai Shankar Chaudhary & Anr(2023), it was held that the endeavour on the a part of the Court docket, whereas contemplating sentence suspension, “ought to be to see as as to whether the case offered by the prosecution and accepted by the Trial Court docket will be mentioned to be a case wherein, finally the convict stands for honest possibilities of acquittal”
In Jamanlal v State of Rajasthan and one other(2025) it was held {that a} few lacunae or loopholes right here or there within the case of the prosecution can’t be a floor to droop the sentence, and that the Court docket has to reach at a prima facie satisfaction that the conviction will not be sustainable.
On this case, the Excessive Court docket’s aid is barely primarily based on the non-applicability of Part 5(c). It doesn’t attain any prima facie discovering that the offence of penetrative sexual assault below Part 3/4 POCSO just isn’t attracted. The Excessive Court docket says that even when Part 4 POCSO is relevant, he will be given aid since he has already suffered the minimal sentence of seven years prescribed for that offence. The truth that the offence below Part 4 POCSO Act is punishable with life imprisonment is grossly ignored.
Risk to the sufferer can also be an important consider selections on suspension of sentence. On this case, the report itself reveals a historical past of intimidation and violence directed on the survivor’s household. The demise of the survivor’s father, the alleged makes an attempt to silence witnesses, and the extraordinary safety measures that had been thought-about needed throughout trial will not be disputed information. With out bestowing its severe consideration to those circumstances, the Excessive Court docket appeared to have casually brushed apart such considerations by observing {that a} convict can’t be stored in jail on the belief that police wouldn’t do their job correctly.
The Excessive Court docket’s order displays a hypertechnical strategy that sidelines the seriousness of the offence and its impression on the survivor. By trivialising these issues, the choice raises troubling questions in regards to the strategy to suspension of sentence in instances involving excessive gravity, entrenched abuse of energy, and a demonstrable historical past of intimidation.
The creator is the Managing Editor of LiveLaw. He will be reached at manu@livelaw.in
Leave a Reply