After the CBI challenged the order suspending the life term punishment of former BJP MLA Kuldeep Singh Sengar in the Unnao rape case, the Supreme Court on Monday stayed the order.
Before the top court, the CBI, represented by Solicitor General of India Tushar Mehta, described the Delhi High Court’s order, suspending the sentence and granting bail as a consequence, as “contrary to law” and “perverse”.
Notably, the central agency contested the finding that Sengar was not a public servant when he committed the offence.
1. During Sengar’s conviction, the trial court recorded a specific finding that the surivor was 15 years, 10 months, and 13 days of age (less than 16 years of age) on the date of the commission of the offence, in June 2017. The age of the survivor, being below 16 years, is considered by the trial court at the time of sentencing.
Before Supreme Court, CBI represented by Solicitor General Tushar Mehta called the Delhi HC order “erroneous”.
2. At the time of sentencing on December 20, 2019, the trial court convicted the accused under Section 376(2) of IPC in light of Section 376(2)(i) (within the limits of the police station to which such police officer is appointed), which was undisputably on the statute book on the date of the offence.
3. Absolutely clear that the convict is held guilty under Section 376 (punishment for rape) of the IPC.
4. The convict, having been convicted for “rape”, the only question that would arise would be the difference between Section 376(1) (exception) and 376(2) of IPC.
5. Trial court’s specific finding that the survivor was less than 16 years of age justifies the sentencing under Section 376(2)(i)(commits rape on a woman when she is under sixteen years of age) of IPC. The punishment for Section 376(2)(i) is that the convict “shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life”.
6. Once the conviction is recorded for the commission of “rape” as defined under Section 375 of the IPC, the distinction between Section 376(1) and 376(2) pales into insignificance for the purpose of deciding suspension of sentence. This is so because even under Section 376(1), the punishment is “not less than ten years but which may extend to imprisonment for life”.
7. Once the finding of the commission of “rape” is recorded, the sentencing under Section 376(1) or 376(2) IPC will have no relevance in deciding the suspension of sentence.
8. The conviction is for life, which shall mean imprisonment for the remainder of the convict’s life. Even if this is ignored (only for argument’s sake and for the question of suspension of sentence), one thing is undeniable: the convict is sentenced to life.
9. The high court order has chosen not to advert to this issue, though it goes to the root of the decision.
10. The high court order recorded that the trial court convicted the appellant for the offence under Section 376(2) of the IPC as well as Section 5(c), punishable under Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act but only proceeds on Sections 5 and 6 of the POCSO Act and erroneously records a finding that, since Sengar has already undergone more than 7 years in prison, he is entitled to suspension of sentence since it is “more than the minimum number of years under Section 4 of the POCSO Act before its amendment in 2019.”
On Monday, a bench headed by Chief Justice of India Surya Kant said that if it were to accept the high court’s interpretation that Sengar does not fall within the definition of a public servant, then it would mean that a police constable would be a public servant, but an MLA is not.
“We are only worried that a constable or a patwari, they will be public servant for the purpose of committing this offence, but a Member of Parliament or elected member of state Legislative Assembly or Legislative Council, if this interpretation is construed to be correct, they will be exempted,” the bench said.
In the meantime, when the bench was informed that some social media accounts were imputing against the Delhi High Court judges who granted relief to Sengar, Mehta “unequivocally and categorically” said that both the judges were brilliant with unimpeachable integrity.
“They are few of the finest judge of the country. Any attempt to malign these two judges must be strongly condemned,” Mehta said, adding that he fully “trusts both the judges and there are always some elements who attempt to browbeat honest judges”.