By Sanjay Raman Sinha
On December 29, 2025, a three-judge Supreme Court bench headed by Chief Justice of India Surya Kant, with Justices JK Maheshwari and AG Masih, stayed the Delhi High Court order granting bail to expelled BJP MLA and Unnao rape convict Kuldeep Singh Sengar. The Delhi High Court had suspended his sentence on the technical ground that he did not fall within the definition of a “public servant” under the POCSO Act.
The Central Bureau of Investigation had (CBI) challenged the High Court order, stressing that Section 5(c) of POCSO was specifically crafted to punish aggravated sexual assault by individuals misusing positions of authority. Under POCSO, “penetrative sexual assault” carries a minimum ten-year sentence, but “aggravated penetrative sexual assault” by a public servant invites a minimum sentence of 20 years. The CBI argued it would be absurd for the law to recognise a constable or village revenue officer as a public servant under POCSO, but exclude an influential legislator.
Relying on Section 42A of POCSO, which gives the statute overriding force over conflicting laws, the CBI urged the court to interpret the Act in line with its central purpose—protecting children from those in positions of trust and power. The issue is being heard under both the IPC and POCSO frameworks.
Chief Justice Surya Kant sharply articulated the Court’s concern: “If this interpretation is accepted, a constable or a patwari will be a public servant for the purpose of committing this offence, but an elected MLA or MP will be exempted.”
Although Sengar remains incarcerated due to a separate ten-year sentence for the custodial death of the survivor’s father, the Supreme Court’s stay ensures he cannot secure release on what the CBI considers a legal technicality.
The legal knot lies at the intersection of definitions, precedents, and evolving jurisprudence. IPC Section 21 excludes MLAs from the category of public servants, even though later laws like the Prevention of Corruption Act included them. The Delhi High Court held that such expanded definitions cannot automatically be imported into POCSO. Meanwhile, contradictory Supreme Court rulings—from RS Nayak vs AR Antulay (1984) to PV Narasimha Rao (1998) to Sita Soren (2024)—reflect shifting judicial thinking on whether legislators performing “public duty” are indeed public servants.
The Sengar case also highlights a recurring struggle between literal interpretation and legislative intent. Earlier controversies under POCSO—such as the Bombay High Court’s 2021 “no skin-to-skin contact” ruling, later overturned—demonstrate how the statute continually tests judicial commitment to child-centric justice.
Modern jurisprudence has steadily leaned towards stronger accountability for elected representatives. The Bharatiya Nyaya Sanhita (BNS), 2023, explicitly broadens the term “public servant” to include those performing “public duty,” addressing exactly the loophole now under scrutiny.
The Supreme Court’s challenge is therefore two-fold: to define how public power intersects with criminal liability, and to decide whether the spirit of a child-protection law can override a narrow, technical reading of statutory text.
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