The Supreme Court has stayed the decision of the Delhi High Court in the Unnao rape case. On Monday (December 29, 2025), the petition filed by the Central Bureau of Investigation (CBI) against the decision of the High Court was heard in the Supreme Court. The High Court had suspended the life sentence of Kuldeep Singh Sengar and also granted him conditional bail.
The bench of Chief Justice Surya Kant, Justice JK Maheshwari and Justice Augustine George Masih was hearing the case. Solicitor General Tushar Mehta appeared on behalf of CBI, while senior advocates Siddharth Dave and N Hariharan appeared to present the side of Kuldeep Sengar.
The court said that as per the order of the High Court, Kuldeep Sengar should not be released. The court said that after listening to the arguments of the lawyers of CBI and Sengar, we came to know that many questions arise regarding the law. He said that normally when the bail of a prisoner or an under-trial is challenged, this court does not stay his release without hearing him, but here the convict has been convicted in other cases also, hence we stay the order of December 23 of the High Court and the convict should not be released. Sengar is serving a 10-year sentence in the cases of custodial death of the victim’s father and influencing witnesses.
According to the report of Bar and Bench, the court also said that the interpretation given by the High Court to the public servant under Section 5 of POCSO, the law on sexual offenses against children, may be wrong and due to this, MLAs or MPs may get exemption from it. The court also said that the High Court judge who has given this order in the case of Kuldeep Sengar is a very capable lawyer, but we all can make mistakes. He said that there is a need to pay attention to this definition of public servant under POCSO. The court expressed concern that under this, a police constable would be a public servant, but the assembly member would be kept out of it.
SG Tushar Mehta argued on behalf of CBI and said that the High Court did not consider many aspects whereas this is a case of a minor victim. He said that a very gruesome rape of a minor took place and the High Court did not take into account Section 376 of the IPC and Section 5 of the POCSO. SG Tushar Mehta said that the reason for convicting Sengar was clear and it was the act of a public servant. CBI proved this with facts and evidence. The SG said that the girl was only 15 years 10 months and a few days old when this crime was committed.
SG said that Section 376 has two parts. Kuldeep Sengar has been convicted of rape, which comes under Section 375. Again, if the rape is committed by a person in a dominant position, the minimum imprisonment is 20 years or it may extend to life.
CJI told SG Mehta that you say that this comes under section 376(2)(i). Even if the victim is not a minor, the minimum punishment under Section 376 (i) will be applicable. CJI asked SG whether your argument is that if the victim is a minor then the order of the High Court is not appropriate that the accused cannot be considered a public servant.
SG started giving information about the section of rape under section 376 of IPC. He said that the reason for imposing POCSO was that the victim was a minor. SG said that section 376, whether it is one or two, is life imprisonment. Be it 20 years imprisonment or life imprisonment. The CJI asked, are you saying that if the victim is a minor then the concept of public servant becomes irrelevant?
The SG said, ‘Yes, penetrative sexual assault is a serious crime. Now there is a provision for punishment in Section 4. After the amendment, there are some situations in which the crime becomes serious. These categories are if the person is in a dominant position over the victim. SG told about the reference to the Supreme Court’s decision in AR Antulay case in the argument given by Sengar’s lawyer in the High Court. Also told that it was said from his side that it was a case of corruption and it was related to POCSO, hence Sengar cannot be considered a public servant.
The SG said, ‘For example, when a constable commits such an act while on duty, will he be guilty? Similarly, will an army officer be guilty of serious sexual harassment if he commits such an act while on duty? The definition of public servant is not given in this Act and it has been defined by borrowing, that is, the definition will be the same as stated in the IPC, but the definition should be as per the context, unless the context states otherwise.
The CJI said, ‘So you are saying that a public servant is a person who is in a dominant position at that time. That is, when someone comes to the MLA for help, the act committed is in a state of dominance and any such act will be considered a serious crime. This is your argument.
The CJI said that suppose for the sake of argument we say that he is not a public servant under Section 5. So he comes under section 3. The amendment did not create any new offence, but only increased the punishment, hence no new offense can be created retrospectively, but that is not the case here.
CJI told SG Tushar Mehta that you say that the amendment does not end the crime, rather the legislature says that the crime is against the morality of the society, hence it is being taken seriously. Therefore when courts impose punishment after conviction, it is seen that the legislature wants to make it more difficult. Is that what you are saying?
Kuldeep Sengar was sentenced to life imprisonment by the Delhi trial court considering him as a public servant. However, the High Court bench of Justice Subramaniam Prasad and Justice Harish Vidyanathan Shankar said that Sengar cannot be defined as a public servant under Section 5 (c) of POCSO and Section 376 (2) (b) of the IPC. The court said that Sengar does not fall under Section 5(p) of POCSO, which punishes serious sexual harassment by a person holding a position of trust or authority.
CBI has challenged the High Court’s argument that Sengar is not a public servant under Section 5(c) of POCSO, hence a case of sexual harassment cannot be made out against him. CBI says that MLA is a constitutional post, which discharges such duties which are in the interest of the state and the wider community.
Kuldeep Sengar’s lawyers Siddharth Dave and N Hariharan said that the trial court had sentenced only on the basis of the definition of public servant. He opposed sentencing Sengar by using the definition of public servant in the IPC for the POCSO Act and said that one penal code cannot use the definition of another penal code.
Both the judges also mentioned the comments being made on social media about the High Court judges who give the verdict. On this, SG Tushar Mehta said that he is one of the capable lawyers of the country and if anyone tries to tarnish his image, we strongly condemn it. He also made it clear that CBI has full confidence in both the judges.
This case is of the year 2017, when a minor girl from Unnao district of Uttar Pradesh had accused the then MLA Kuldeep Singh Sengar of rape. Initially the police had refused to register the complaint of the victim, but later the matter gained momentum and demonstrations took place at many places. The case was handed over to CBI and the Supreme Court transferred the case to Delhi for a fair trial. The trial court convicted Sengar in 2019 and sentenced him to life imprisonment. Sengar has also been sentenced to 10 years in the case of death of the victim’s father in police custody and influencing witnesses.
(With inputs from Ankit Gupta)
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Unnao Rape Case: CBI speaks in SC on the bail of convict Kuldeep Sengar – If any constable or military officer does this while on duty…
