The court also issued a notice to Sengar, asking to reply within 4 weeks.
Credit: PTI Photos
New Delhi: The Supreme Court Monday stayed the Delhi High Court's order of December 23, granting bail to former UP MLA Kuldeep Sengar in the 2017 Unnao rape case by suspending his sentence of life term, pending his appeal against the conviction.
Acting on a plea by the CBI, a vacation bench of Chief Justice of India Surya Kant, J K Maheshwari and Augustine George Masih issued notice to expelled BJP leader, seeking his response within four weeks.
Upon hearing Solicitor General Tushar Mehta for the CBI, the court noted substantial questions of law arose in the matter, including on definition of public servant, which required examination.
The bench also noted the suspension of sentence orders were ordinarily not stayed but this was a peculiar case as Sengar has been in custody in another case.
"We stay operation of the HC's order in peculiar facts. Respondent shall not be released from custody pursuant to the impugned order," the bench said.
The court also clarified the victim has a statutory right to file separate petition and she does not require liberty from this court.
Mehta contended that the HC erred in holding that the aggravated offence provisions under the POCSO Act were not attracted as Sengar could not be treated as a public servant. He asserted that the aggravation takes place, when the offender is in a position of dominance over the child.
He said though the term public servant has not been defined under the POCSO Act, it has to be considered contextually.
Urging the court to stay the HC's verdict, Mehta said, since the convict had also been held guilty of killing the survivor's father and some other people, he would not be able to come out of jail.
Senior advocates Siddharth Dave and N Hariharan for Sengar contended MLA here cannot be treated as public servant and the definition of public servant can't be imported unless expressly provided under the statute.
The bench, however, said, "If this interpretation is accepted, a constable or patwari will be public servant but MLA/MP will not be and get exempted".
The court also noted the High Court had not examined the applicability of Section 376(2)(i) IPC, which was in force on the date of the offence and dealt with rape of a minor.
Sengar's counsel said another petition filed by women lawyers should be dismissed and they were appearing on public platforms and making remarks against judges.
The court said, it would hear the issue of locus on the next date of hearing.
In its order the HC's division bench of Justices Subramonium Prasad and Harish Vaidyanathan Shankar suspended the jail term, saying Sengar had already served seven years and five months in prison.
After public outrage and protests over the order, the CBI filed a plea, calling the HC's order as "against the law and perverse". It also apprehended releasing the convict on bail would endanger the rape-survivor and her family.
It contended also said, "The HC failed to consider that a sitting MLA, by virtue of holding a constitutional office, is vested with public trust and authority over the electorate, and that such a position carries heightened responsibility arising from duties owed to the state and society."
A separate plea was also filed by Anjali Patel and Pooja Shilpkar, assailing the HC's order.