Advocate Hitendra Gandhi urged the Delhi High Court Chief Justice to list the Unnao rape case appeal, warning that suspending Kuldeep Singh Sengar’s life sentence threatens survivor safety, harms victim dignity, and raises concerns over POCSO law application.
Advocate Hitendra Gandhi reached out to the Chief Justice of the Delhi High Court, requesting an urgent hearing for the appeal related to the 2017 Unnao rape case.
This request follows a recent decision by the High Court to suspend the life sentence of former Uttar Pradesh BJP MLA Kuldeep Singh Sengar while his appeal is pending.
In a detailed communication addressed to the Registrar General, the advocate stressed the need for expedited proceedings, citing the unique circumstances of the case, its history of intimidation, and the broader implications for survivor protection, child safety, and public trust in the justice system.
The representation made clear that it does not aim to challenge the judicial merits of the December 23 order, which should only be subject to review in proper legal contexts.
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Instead, the focus is on administrative matters, seeking an early hearing and a consolidated discussion of all related applications due to the “immediate consequences” resulting from the sentence suspension.
Highlighting the Unnao case, the advocate noted it is not only significant for the offence but also for the aftermath: the survivor’s relentless fight for justice, threats against her family, the tragic death of her father, and assaults on relatives and lawyers, along with remarkable judicial actions, such as the transfer of the trial and the provision of CRPF protection.
These factors, the advocate emphasized, illustrate the challenges faced in power-asymmetry prosecutions, where the judicial process can become punitive for victims.
Concerns were raised regarding the High Court’s initial perception that the aggravated offence under Section 5(c) of the POCSO Act may not apply since the appellant is not classified as a “public servant.”
This, combined with Sengar having served over seven years of his sentence, could unintentionally downplay the seriousness of the offence during interim proceedings.
The advocate argued that even if the aggravated provision is ultimately deemed inappropriate, the offence under Section 3 alongside Section 4 of POCSO remains punishable by life imprisonment and should not be considered low-gravity simply because the minimum term has been reached.
The representation highlighted that the High Court’s own order acknowledges critical vulnerabilities: prior trial transfers, the appellant’s conviction for culpable homicide related to the survivor’s father, threats to family members and legal representatives, and the ongoing necessity for security.
These factors are central to evaluating interim release in a case entrenched in documented intimidation. Another concern highlighted was the broader interpretative implications of excluding an elected MLA from the public servant category concerning aggravated child sexual offences.
The advocate noted that such an interpretation, even if it aligns textually, risks appearing disconnected from real-world implications, as lawmakers wield public authority, receive salaries from public funds, and exert considerable institutional influence.
In a national context, the letter referenced NCRB data indicating over 448,000 crimes against women in 2023, arguing that prominent judicial decisions in sexual violence cases involving political figures carry substantial symbolic importance beyond individual matters.
The advocate asserted that the greatest threat lies not in the absence of laws, but in the perception that protective statutes can be circumvented through technical interpretations when power is at stake.
Consequently, the advocate urged the Chief Justice to consider advancing the hearing of the appeal and related applications, ensuring they are heard by the same panel, and, if necessary, taking institutional steps to clarify how “public servant” status should be applied in aggravated child sexual offences under the POCSO Act.
Concluding with a message of respect for both the Court and the Bar, the representation emphasized that the issue transcends individual cases, touching upon the constitutional ideals of dignity, safety, and equality for women and children, and challenging the justice system’s ability to hold steady when power tests it.
Additionally, The Central Bureau of Investigation (CBI) appealed to the Supreme Court against the Delhi High Court’s decision to suspend the life sentence of Kuldeep Singh Sengar, a former Uttar Pradesh BJP MLA, in the 2017 Unnao rape case involving a minor girl.
The CBI contest the High Court’s ruling, which suspended Sengar’s sentence under Section 389(1) of the Code of Criminal Procedure while his criminal appeal is still pending.
Earlier, On December 23, the Delhi High Court suspended Sengar’s sentence in relation to the 2017 case. The survivor, a minor, was reportedly kidnapped and raped by Sengar between June 11 and June 20, 2017, after which she was sold for Rs.60,000 before being recovered at the Maakhi police station.
According to Section 5 of the POCSO Act, the definition of aggravated penetrative sexual assault includes offenses committed by public servants, police officers, or others in trusted positions.
The trial court labelled Sengar as a public servant under this definition.
However, the High Court’s Division Bench, consisting of Justices Subramonium Prasad and Harish Vaidynathan Shankar, concluded that Sengar did not qualify as a public servant under Section 5(c) of the POCSO Act or Section 376(2)(b) of the Indian Penal Code (IPC).
The Court ruled that Sengar did not fit within the provisions of Section 5(p) of the POCSO Act, which addresses offenses committed by individuals “in a position of trust or authority.”
In its appeal to the Supreme Court, the CBI asserts that the High Court made a legal error by ruling that aggravated penetrative sexual assault under Section 5(c) of the POCSO Act was not established in Sengar’s case.
The CBI argues that a sitting MLA holds a constitutional position of trust and authority, responsible for public duties that impact both the State and the community.
According to the petition,
“High Court 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 position carries heightened responsibility arising from duties owed to the State and society.”
The CBI further claims that the High Court did not apply a purposive interpretation of the POCSO Act, aimed at protecting children from sexual offenses.
They assert that Section 5(c) is designed to penalize the sexual exploitation of minors by individuals who abuse their positions of power or authority.
Previously, The Unnao rape case survivor has announced that she will move the Supreme Court to challenge the Delhi High Court’s order granting conditional bail to convict Kuldeep Singh Sengar.
Reacting to the decision, the survivor said the judgment had deeply shaken her faith in the justice system. She stated that the ruling left her emotionally devastated but reaffirmed her resolve to continue fighting for justice for the sake of her children and family.
The survivor also alleged political interference in the case, claiming that influential leaders backed Sengar and asserting that powerful interests played a role in the outcome. She said she would approach the Supreme Court seeking justice.
She further accused Delhi Police of using force during a recent protest near India Gate, alleging that she and her family were prevented from holding a dharna and that she was mishandled despite her medical condition. She also claimed that activist Yogita Bhayana, who accompanied her, was detained and later released.
The survivor’s mother expressed serious concerns over their safety, alleging repeated attacks on the family in the past and claiming that their security cover had been withdrawn. She said the family feared further harm following Sengar’s release on bail and expressed a loss of faith in the Delhi High Court’s decision.
Background
The Unnao rape case has been marked by a series of tragic and controversial incidents involving the survivor’s family:
- April 2018: The survivor’s father was arrested under the Arms Act after an alleged complaint by Sengar’s associates. He later died in police custody. A post-mortem revealed 14 injuries on his body.
- July 2019: A day after the survivor wrote to the then Chief Justice of India seeking justice, a truck rammed into the car carrying her and her lawyer. Two of her aunts were killed in the crash. The survivor and her lawyer were seriously injured, and the lawyer later died.
- December 2019: Kuldeep Singh Sengar was convicted and sentenced to life imprisonment by a trial court.
The case dates back to 2017, when Sengar, who was later expelled from the BJP, allegedly kidnapped and raped a minor girl. In 2019, the Supreme Court transferred the rape case and related cases from a trial court in Uttar Pradesh to Delhi for impartial proceedings.
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