Explained: Why did Delhi HC release a former BJP MLA convicted of raping a minor?

The Delhi High Court on Tuesday suspended the sentence of former Bharatiya Janata Party MLA Kuldeep Singh Sengar and granted him bail in the 2017 Unnao rape case involving a minor.

The court observed that, on the face of it, the facts of the case do not fulfill the conditions required to apply the stricter offence of “aggravated penetrative sexual assault” under section 5 of the Protection of Children from Sexual Offences Act. This was because Sengar does not fall within the definition of a “public servant”, it said.

Section 5 of the Posco Act sets out conditions in which a “penetrative sexual assault” against a child is treated as a more “aggravated” offence. An aggravated offence is treated as serious because it is committed under special or severe circumstances that make the crime graver than usual.

Under the Posco Act, an offence becomes “aggravated penetrative sexual assault” when it is committed by persons holding positions of authority, such as a public servant or police officer within their jurisdiction, members of the armed or security forces or staff of hospitals or prisons.

Under Posco, an aggravated offence carries a minimum sentence of 20 years, which can be extended up to life imprisonment.

In 2019, the trial court convicted Sengar, noting that,...

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