File photo: Kuldeep Singh Sengar
NEW DELHI: Kuldeep Singh Sengar, former UP MLA convicted of raping a minor girl in Unnao in 2017, did not come under the definition of a public servant under the Pocso Act, Delhi high court held in its Dec 23 order suspending his sentence.In a curious move, high court has decided the applicability of a stringent Pocso Act section that carries a minimum jail term of 20 years, which can be extended up to life, while hearing Sengar’s plea for suspension of sentence, even as his appeal against the trial court ruling remains pending.A bench of Justices Subramonium Prasad and Harish V Shankar faulted the trial court for treating Kuldeep Sengar as a public servant and handing him jail for the “remainder of life”, for the offence of “aggravated penetrative sexual assault” under section 5 of the Pocso Act.The bench concluded that the charge of “aggravated penetrative sexual assault” under the section was not applicable in the case of Sengar. Section 5 of the Pocso Act defines “penetrative sexual assault” against a minor as “aggravated penetrative sexual assault”, if committed by persons holding positions of authority – including a public servant or police officer within their jurisdiction, members of the armed or security forces, or staff of hospitals or prisons.high court noted that Pocso Act did not define a public servant and that the trial court wrongly relied upon Prevention of Corruption Act to borrow the definition.“In view of specific inclusion of IPC, CrPC, JJ Act and IT Act in Section 2 of the Pocso Act, this court cannot take aid of the definition of ‘public servant’ from any other Act other than IPC, CrPC, JJ Act, and IT Act. Notably, CrPC, JJ Act, and IT Act do not provide for the definition of a public servant,” high court observed, pointing out that MLA is not recognised as a public servant under any of these statutes. It held that “same reasoning applies for his conviction under section 376(2)(b) of IPC”.Counsel for the survivor, opposing the suspension of sentence, argued that even if Sengar does not under come under definition of a ‘public servant’ within purview of Section 5(c) of the Pocso Act, he can still be sentenced to imprisonment for the remainder of his life.The bench, however, noted that since it was prima facie satisfied that “that offence under Section 5 of Pocso Act is not attracted in present case”, survivor’s contention “that the investigation was compromised cannot be a ground not to suspend the sentence of the appellant, more so looking at the period of incarceration already undergone”.
