Is the Delhi High Court’s suspension of Kuldeep Sengar’s sentence a de facto appellate adjudication?

ON DECEMBER 29, a three-judge bench of the Supreme Court, comprising Chief Justice Surya Kant and Justices J.K. Maheshwari and A.G. Masih, heard the appeal filed against the Delhi High Court’s (‘HC’) judgment in Kuldeep Singh Sengar v. CBI (2025) by the Central Bureau of Investigation (‘CBI’) and Advocate Anjale Patel. 

The HC’s judgement suspended the life sentence of expelled-BJP leader Kuldeep Singh Sengar, who was convicted by the trial court in the infamous Unnao rape case. It held that a sitting Member of the Legislative Assembly (‘MLA’) does not fall within the definition of a “public servant” under Section 21 of the Indian Penal Code, 1860 (‘IPC’). On this basis, the HC concluded that Section 5(c) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), which classifies sexual assault by a public servant as an aggravated offence, was inapplicable. The decision drew sharp criticism from lawyers, senior advocates, politicians, and the survivor’s family, triggering public protests.

While staying the HC’s order, the Supreme Court observed that the appeal raised several substantial questions of law and expressed concern over the exclusion of elected MLAs from the definition of a “public servant.” 

In this post, the author examines the Delhi HC’s suspension of sentence through the lens of the Supreme Court’s settled jurisprudence under Section 389 of the Code of Criminal Procedure, 1973 (‘CrPC’). The HC judgement, it is argued, reflects a perilous turn to judicial formalism, where a hyper-technical reading of Section 21 IPC displaced the post-conviction presumption of guilt and produced a de facto acquittal on the aggravated charge.

A brief timeline 

The present case arises from allegations of the sexual assault of a minor girl (“the survivor”) in June 2017 in Unnao, Uttar Pradesh, by Kuldeep Singh Sengar, then a sitting MLA. The prosecution alleged that the survivor was lured to Sengar’s residence and raped. The assault was not immediately reported, allegedly due to threats and intimidation. Following inaction by the local police, the survivor’s mother moved an application under Section 156(3) CrPC before the Special Court (POCSO), Unnao, on February 12, 2018, alleging offences under Sections 363, 366, 376, and 506 IPC, as well as under the POCSO Act.

The trajectory of the case shifted tragically in April 2018 when the survivor’s father, after allegedly being assaulted by Sengar’s associates and arrested on fabricated charges, died in judicial custody. This development led to the transfer of the investigation to the CBI. In August 2019, citing threats to the survivor and administrative delays, the Supreme Court took suo motu cognisance of the matter and transferred the trial to the Tis Hazari Courts in Delhi. The Trial Court framed charges under Section 5(c) of the POCSO Act, recognising Sengar as a “public servant” and thereby invoking the aggravated penetrative sexual assault provision.

In December 2019, Sengar was convicted under Section 376 IPC and Sections 5(c) and 6 of the POCSO Act, and sentenced to imprisonment for the remainder of his natural life. Aggrieved by the conviction and sentence, he preferred a statutory appeal before the Delhi HC, during the pendency of which the present proceedings arose.

The High Court’s approach

The Delhi HC reiterated that while considering an application under Section 389 CrPC, it was not expected to finally adjudicate the appeal or undertake a detailed re-appreciation of evidence. However, it was required to examine whether the conviction rested on prima facie sustainable legal foundations, whether the sentence imposed was arguably excessive, and whether continued incarceration would render the appeal nugatory. The HC therefore confined itself to examining the legal sustainability of the aggravated offence under the POCSO Act, rather than engaging in factual re-determination.

The HC identified the central legal infirmity in the conviction under Sections 5(c) and 6 of the POCSO Act. It noted that the POCSO Act does not define the term “public servant” and that Section 2(2) expressly mandates that undefined terms must derive meaning only from the IPC, the CrPC, the Juvenile Justice (Care and Protection of Children) Act, 2015 or the Information Technology Act, 2000. Among these statutes, the definition of “public servant” exists only in Section 21 IPC. On a plain reading of Section 21 IPC, it observed that a Member of the MLA was conspicuously absent from the enumerated categories of public servants. Consequently, importing any external or purposive meaning would violate the express legislative scheme of Section 2(2) under the POCSO Act.