The Delhi High Court on December 23 observed a Member of Legislative Assembly (MLA) is not a public servant as defined under the Protection of Children Against Sexual Offences Act (POCSO), as it suspended ex-Bharatiya Janata Party MLA Kuldeep Singh Senger’s life sentence in the 2017 Unnao rape case.
The high court’s observation means that Senger is not a public servant as defined in POCSO and hence cannot be convicted of aggravated penetrative sexual assault by a public servant under the law.
The high court suspended the sentence on the condition that Senger would furnish a personal bond of ₹15 lakhs with three sureties of a like amount; deposit his passport with the trial court; stay in Delhi during the pendency of the appeal to ensure that he is available for completing the remaining part of the sentence in case he is found to be guilty after appeal; he would not threaten the survivor or her family and not come within five kms of her residence. Senger was also directed to present himself before the local police station in Delhi every Monday between 10 am – 11 am.
In December 2019, a Delhi court convicted Senger for the kidnap and rape of a minor from Unnao. Senger was also found guilty for the death of the girl’s father who was in judicial custody.
Though Senger’s life sentence has been suspended in the rape case, he is unlikely to be released from jail since the order for the bail appeal in a custodial death case is still pending.
Why did the High Court suspend the life sentence
The high court’s division bench comprising Justices Subramonium Prasad and Harish Vaidynathan Shankar observed that an MLA is not a public servant as defined under POCSO changed the nature of Senger’s conviction.
Now that Senger’s status as an MLA was off the table, the high court concluded that he would be convicted for “penetrative sexual assault” against a minor. Since the crime took place in 2017—before the POCSO laws were amended in 2019—the law “as it stood” called for a minimum punishment of seven years.
The high court observed it “could not close its eyes” to the fact that Senger had already undergone more than seven years jail time, “which is more than minimum number of years under Section 4 of the POCSO Act prior to its amendment in 2019”.
The high court said even though it had considered Senger's role in how the survivor was threatened, her father killed in judicial custody, trial shifted from Uttar Pradesh to Delhi, and attempts made to harm the girl’s relatives and lawyer, a “threat perception” against the survivor was not a “tenable” argument to deny him relief.
“The Courts cannot keep a person in custody being apprehensive that the police/paramilitary may not do its job properly. Such an observation or such a thought process would undermine the laudable work of our police/paramilitary forces,” the high court said as it directed the CRPF to continue protecting the survivor.
The high court observed that though “substantial arguments” were raised on both sides questioning Senger’s alibi during the crime and the survivor’s age – whether she was a minor or a legal adult at the time of the sexual assault, those issues could be decided on its merits during appeal.
