SUPREME COURT QUESTIONS KULDEEP SENGAR'S BID TO DROP AGGRAVATED CHARGE: CONSTABLE A PUBLIC SERVANT, BUT NOT MLA?:

In a significant hearing on December 29, 2025, the Supreme Court stayed the Delhi High Court's order granting bail to Kuldeep Singh Sengar, the former BJP MLA convicted in the 2017 Unnao rape case, while agreeing to examine the Central Bureau of Investigation's challenge against the bail. A bench comprising Chief Justice Surya Kant and Justices J.K. Maheshwari and A.G. Masih issued notice to Sengar and highlighted substantial questions of law that warrant deeper consideration, particularly regarding the interpretation of "public servant" under the Protection of Children from Sexual Offences (POCSO) Act.

The core dispute centres on whether Sengar, an MLA at the time of the offence, can be charged with aggravated penetrative sexual assault under the POCSO Act. Sengar argues that he does not qualify as a public servant, relying on the definition imported from Section 21 of the Indian Penal Code through Section 2(2) of the POCSO Act, which excludes elected legislators from that category. His counsel contended that penal statutes must strictly adhere to expressed definitions and cannot expand the scope beyond what the IPC provides.

Solicitor General Tushar Mehta, appearing for the CBI, urged a contextual interpretation. He emphasised that the POCSO Act does not independently define "public servant" and, given the overriding effect under Section 42A, the term should be understood in light of the Act's protective purpose. Mehta argued that the provision targets persons in positions of dominance over a child, and misuse of such authority attracts aggravated penalties. As a powerful local MLA, Sengar exercised significant influence over the minor survivor (aged below 16 at the time), making the aggravated charge applicable. He further clarified that the CBI's position does not render the concept of public servant irrelevant when the victim is a minor; rather, penetrative sexual assault was already an offence on the date of the incident, with aggravation depending on attendant circumstances such as abuse of power. Subsequent amendments increasing punishment, he submitted, merely enhanced penalties without creating new offences and thus do not infringe Article 20 of the Constitution.

The bench acknowledged merit in arguments from both sides but expressed unease about the implications of accepting Sengar's narrow interpretation. Chief Justice Kant observed that such a view would lead to an anomalous situation where lower-ranking officials like constables or patwaris qualify as public servants for aggravated offences under the POCSO Act, while elected Members of Legislative Assemblies or Members of Parliament remain exempt despite wielding far greater authority.

While staying the High Court's bail and sentence suspension order, the bench noted that ordinarily, a bail granted to a convict should not be interfered with without hearing the beneficiary. However, an exception was justified here since Sengar had not yet been released from custody, as he remains incarcerated in connection with another related case (the death of the survivor's father in judicial custody).

The Court underscored that the broader legal question, whether elected legislators fall within the ambit of "public servant" for aggravated sexual offences against children under the POCSO framework, requires authoritative determination. By issuing notice and restoring Sengar to custody pending final adjudication, the bench signalled its intent to resolve this interpretative issue, which carries significant implications for the application of enhanced penalties in cases involving persons in positions of political power. This development reverses Sengar's temporary relief and ensures continued judicial scrutiny of the aggravated charge that had contributed to his life imprisonment sentence awarded by the trial court.