Overview
- The division bench held that Section 5 (aggravated penetrative sexual assault) of POCSO does not apply because an MLA is not a “public servant” under the IPC, and it suspended Kuldeep Singh Sengar’s life sentence pending appeal.
- The court imposed conditions that require Sengar to remain in Delhi, stay at least 5 km from the survivor’s residence, and refrain from any threats to the survivor or her mother.
- Relying on POCSO Section 2(2) and IPC Section 21, the judges said definitions can only be borrowed from the IPC, CrPC, JJ Act, and IT Act, so the Prevention of Corruption Act’s broader “public servant” definition cannot be used; the bench cited A.R. Antulay.
- The bench also indicated that the same reasoning undercuts the aggravated punishment provision in IPC Section 376(2)(b), while noting Sengar has already served more than seven years, which met the pre-2019 minimum under POCSO Section 4.
- The survivor and the CBI opposed suspension of sentence, and the survivor’s counsel said they will approach the Supreme Court, as Sengar’s separate 10-year term in the custodial-death case still stands and could prevent his release.