'Constable Is Public Servant, But Not MP/MLA?' Supreme Court Questions Kuldeep Sengar's Plea Against Aggravated Charge In Unnao Rape Case

In CBI's plea challenging grant of bail to Unnao rape accused-Kuldeep Sengar, the Supreme Court today expressed concern about accepting an argument that a constable or a patwari is a 'public servant' for the purposes of the POCSO Act but not an elected Member of Legislative Assembly.

For context, Sengar, who was an MLA at the time of Unnao rape incident, contests a charge of aggravated penetrative sexual assault under POCSO Act by contending that he was not a "public servant" as per existing law. In terms of Section 2(2) of POCSO Act, the definition of a "public servant‟ is to be imported from the definition prescribed under Section 21 IPC according to which an MLA is not a public servant, he says.

A bench of CJI Surya Kant, Justice JK Maheshwari and Justice AG Masih heard the matter and stayed the Delhi High Court order which suspended Sengar's sentence and granted him bail during pendency of his appeal against conviction.

Issuing notice to Sengar, it opined that there were substantial questions of law which required consideration (such as the purport of "public servant"). While staying the bail order, it added that ordinarily, bail order in favor of a convict ought not to be stayed without hearing them. However, in the present case, stay could be granted as Sengar had not been released and was still in custody in another case.

During the hearing, Solicitor General Tushar Mehta submitted that the term “public servant” is not defined in the POCSO Act and therefore has to be understood contextually, keeping in mind Section 42A of the POCSO Act (which gives it an overriding effect). For the purposes of POCSO Act, he argued, a public servant would mean a person who is in a dominant position with respect to the child, and misuse of that position would attract the aggravated offence provisions. It was contended that Sengar, being a powerful MLA in the area at the relevant time, clearly exercised such dominance over the survivor (who was less than 16 years of age).

On being asked whether it was CBI's case that the concept of being a "public servant" becomes irrelevant once the victim is a minor, the SG responded in the affirmative, highlighting that penetrative sexual assault was an offence on the date of the incident, and aggravation depended on the circumstances, such as abuse of dominance. He submitted that later amendments enhancing punishment did not create a new offence and therefore do not violate Article 20 of the Constitution.

Senior Advocates Siddharth Dave and N Hariharan, appearing for Sengar, opposed the SG's submissions and argued that an MLA cannot be treated as a public servant for the purposes of aggravated offences under POCSO Act. They submitted that a penal statute cannot import definitions from another statute unless the law expressly provides for it, and that the IPC excludes an MLA from the scope of "public servant".

Finding weight in submissions of both sides, CJI Kant expressed concern over exclusion of elected Members of Legislative Assemblies from the definition of public servant. "We are only worried that if this interpretation is accepted, a constable or patwari will be public servant for the purpose of committing this offense but an elected MLA/MP will be exempted", he said.

At last, the bench observed that the legal issue concerning the definition of “public servant” and its relevance under the POCSO framework required determination and issued notice.

Case Title: CBI v. Kuldeep Singh Sengar, SLP(Crl) 21367/2025