Law on ‘suspension of sentence’

On December 29, a three-judge vacation bench of the Supreme Court, comprising CJI Surya Kant, Justice J.K. Maheshwari and Justice A.G. Masih, issued notice and stayed the Delhi High Court’s judgment suspending the life sentence of a former four-time MLA, Kuldeep Singh Sengar and granting him bail pending appeal in the 2017 infamous Unnao rape case. The intervention came just six days after the High Court, on December 23, suspended Sengar’s life sentence, which triggered intense public debate.

The case stems from allegations that in June 2017, the survivor, then a minor, was raped by the convict, the then-sitting MLA, at his residence. Amid allegations of police inaction and intimidation, the probe was transferred to the CBI in April 2018, and the trial shifted to Delhi pursuant to the SC’s directions. On December 16, 2019, the trial court in Delhi convicted Sengar, and by a separate order on December 20, 2019, sentenced him to imprisonment for the remainder of his natural life.

Once a trial concludes, an accused is either acquitted or convicted. A conviction displaces the “presumption of innocence” and renders the sentence operative, requiring the convict to undergo the awarded punishment. However, the conviction remains appealable, and during the pendency of appellate scrutiny, the convict may, under Section 389 of the CrPC, 1973 (now Section 430 of the BNSS, 2023), seek suspension of the execution of the sentence and consequential bail if in custody, keeping its enforcement in abeyance. Importantly, ‘suspension of sentence’, which is a discretionary judicial power, halts only the punishment and not the finding of guilt.

The law draws a clear distinction between ‘suspension of sentence’ in cases involving short-term or fixed-term sentences, where it is the norm, and in serious offences, often punishable with life imprisonment, where it is an exception. In Bhagwan Rama Shinde Gosai vs. State of Gujarat (1999), the SC held that when a fixed-term sentence is under appeal, appellate courts must liberally exercise their discretion to suspend the sentence, barring exceptional circumstances. Conversely, in serious offences or those punishable with life imprisonment, such as Sengar’s case, ‘suspension of sentence’ under Section 389 CrPC is rare and must follow an objective assessment of factors including the nature and gravity of the offence, the manner of its commission, and the desirability of releasing the convict on bail, as reiterated by the top court in Shivani Tyagi vs. State of Uttar Pradesh (2024), an acid attack case.

In allowing Sengar’s ‘suspension of sentence’ application, the High Court focused primarily on his conviction under Section 5(c) of the POCSO Act, which criminalises ‘aggravated’ penetrative sexual assault by a “public servant” on a child and attracts punishment under Section 6. Under the criminal law framework, offences committed by persons in positions of trust or authority, such as police or armed force personnel, public servants, and staff of institutions including hospitals, jails, or educational establishments, are treated as ‘aggravated’ and subjected to enhanced punishment, reflecting legislative recognition of abuse of power and heightened victim vulnerability.

Importantly, the POCSO Act does not define the term “public servant.” Under Section 2(2) of the POCSO Act, undefined expressions shall draw their meaning from the IPC (1860), CrPC (1973), the Juvenile Justice (Care and Protection of Children) Act, 2015, or the Information Technology Act, 2000. Among these, only the IPC defines “public servant” under Section 21, encompassing categories such as judges, military officers, and arbitrators, etc., but not elected legislators. Relying on this statutory scheme and the top court’s ruling in R.S. Nayak vs. A.R. Antulay (1984), the HC held that an MLA does not qualify as a “public servant” under the IPC and, consequently, the POCSO Act. This is a departure from the trial court’s approach, which had sustained Sengar’s conviction under Section 5(c) by importing the broader definition of “public servant” from Section 2(viii) of the Prevention of Corruption Act (PCA), 1988, which includes any person holding an office to perform a public duty

Consequently, the HC held, prima facie, that Sengar’s case did not fall within the category of rape committed by a “public servant” under Section 5(c) of the POCSO Act or Section 376(2)(b) IPC. This finding formed the central basis for suspending his sentence and granting regular bail. The HC also noted that Sengar had undergone over seven years of imprisonment, and, relying on Kashmira Singh vs. State of Punjab (1977), observed that prolonged incarceration could cause injustice if the conviction or sentence were ultimately modified.

Addressing the survivor’s apprehension of threat, rooted in a documented history of systemic intimidation, the custodial death of her father (for which Sengar stands convicted under Section 304(II) IPC), police callousness, and the 2019 truck-car accident that critically injured her and her lawyer and killed her two aunts, the HC noted that the SC had granted her CRPF protection in August 2019. Nevertheless, the HC held that ‘suspension of sentence’ could not be denied solely on the apprehension that police or paramilitary forces might fail in their protective duties, as such a premise would undermine their role.

In a case that laid bare a prolonged struggle for justice, structural barriers and deep institutional failures in confronting entrenched power, the suspension of a life sentence raises serious concerns.

First, while the HC is legally correct in holding that it could not expand the statutory definition of “public servant” by amending the legislation to import the broader meaning under the PCA, its interpretation could have been more purposive. The resulting anomaly is troubling: while a patwari (village accountant) or police constable qualifies as a “public servant” and attracts punishment under the POCSO Act, an elected MLA does not. This ambiguity in the POCSO framework was also flagged by the SC bench. By narrowing the scope of the POCSO Act, a special, victim-centric statute designed to protect children, the HC accorded insufficient weight to its object and intent. Offences under Section 5(c) are undoubtedly graver than corruption offences by MPs or MLAs: while corruption undermines governance, offences under the POCSO Act involve the direct abuse of children, causing severe physical and psychological trauma with lasting social consequences.

The apex court has repeatedly cautioned against interpretive literalism that weakens POCSO’s protective core. In Attorney General for India vs. Satish (2021), it rejected the Bombay HC’s untenable narrow interpretation that groping a minor through clothing, without direct “skin-to-skin” contact, did not amount to “touch” or “physical contact” so as to attract the offence of “sexual assault” under Section 7 of the POCSO Act. Similarly, in Independent Thought vs. Union of India (2017), the SC harmoniously and purposively interpreted child-protection law by reading down Exception 2 to Section 375 IPC, which had exempted non-consensual sexual intercourse with one’s wife aged between 15 and 18, from the offence of rape. Together, these rulings affirm that when child protection is at stake, statutory interpretation must advance, not dilute, the law’s protective purpose.

Second, the HC’s decision rests primarily on the prima facie inapplicability of Section 5(c) of the POCSO Act and the period of incarceration already undergone. However, the SC has held that in cases involving life imprisonment, ‘suspension of sentence’ under Section 389 CrPC requires the appellate court to assess whether the convict has a fair chance of acquittal. Recently, in Chhotelal Yadav vs. State of Jharkhand (2025), the apex court set aside a ‘suspension of sentence’, holding that in life imprisonment cases, suspension is warranted only where the convict demonstrates a palpable or gross error in the trial court’s judgment sufficient to show that the appeal may succeed and result in acquittal. In Sengar’s case, the HC ought to have examined whether the non-applicability of Section 5(c) would lead to his complete acquittal. Further, in Shivani Tyagi vs. State of Uttar Pradesh (2024), the SC clarified that long incarceration alone cannot justify ‘suspension of sentence’ in life imprisonment cases.

In the same vein, in Jamna Lal vs. State of Rajasthan (2025), involving a POCSO conviction carrying a 20-year sentence, the SC set aside an order suspending sentence, holding that once the trial court has found the victim to be a minor, such a finding cannot be lightly unsettled at the suspension stage.

Third, the HC should have accorded greater weight to the undisputed record of intimidation and violence, including the survivor’s father’s death, alleged witness tampering, and the exceptional security measures required during trial.

The HC’s literal interpretation highlights a statutory framework that recognises authority only when formally mentioned, not when exercised through entrenched political power, as seen in the definition of “public servant.” This limitation is legislatively inherited, not judicially created. While legality and justice often align, they do not always converge.

Beyond legal questions, the case also exposes how the criminal justice system operates for survivors of sexual violence. It lays bare the fact that, in reality, the fundamental right of equality before law and equal protection of laws under Article 14 of our Constitution is not truly treated as equal for every individual. Yet, these courageous survivors bear the cost not to vindicate the system, but to reveal its limits and expand justice for all.

Kartikey Singh is a lawyer based in New Delhi. Views expressed are personal.