New Delhi, Dec. 30 -- The Supreme Court on Monday stayed the release of former BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case by ordering a stay on the Delhi high court decision which held that Sengar was not a public servant for attracting the offence of "aggravated penetrative sexual assault" for the minor's rape under the Protection of Children from Sexual Offences Act (POCSO). The special vacation bench of the top court headed by Chief Justice of India (CJI) Surya Kant said that the Delhi high court decision of December 23 has raised a "disturbing" situation where a constable or village patwari can be a "public servant" for facing trial under POCSO while an elected member of an Assembly or legislative council will remain exempt. Staying the HC order, the bench, also comprising justices JK Maheshwari and AG Masih said, "This definition of public servant (given by the HC) in the context of POCSO is a little bit disturbing. We are worried if a constable or patwari will be a public servant but an elected member of a legislative assembly or council who is accused of such an offence, by this definition, will be exempt." The order was passed on an appeal filed by the Central Bureau of Investigation (CBI) led by solicitor general Tushar Mehta who said, "We are answerable to the victim - a child who was 15 years and 10 months at the time of the incident in June 2017 when Sengar was a member of legislative assembly (MLA) in Uttar Pradesh. The court also noted the "peculiar" circumstance as Sengar is already in jail in another case where he is convicted in the conspiracy to murder the victim's father in police custody. Further, the court observed that the high court while considering the aspect of conviction under POCSO glossed over the fact that Sengar stood convicted under section 376 (rape) of Indian Penal Code (IPC). The trial court in 2019 convicted Sengar under sections 5(c) and 6 of POCSO (rape on minor by a public servant) and section 376(2)(i) of IPC (rape of minor). "The high court was not conscious of section 376(2)(i) under which also he was convicted. The conviction is under two penal statutes - IPC and POCSO but HC proceeds on the premise that conviction is only under one statute," the bench remarked. "These are some of the best judges we have...but at the same time, we all are prone to committing mistakes," the bench remarked. Solicitor general said, "This is a horrific rape of a 15-year old girl and even if we assume for argument sake, POCSO Act is not made out, still under Section 376(2)(i) sentence is minimum 10 years extending to imprisonment for the remainder of a person's natural life..This order requires to be stayed for complete non-consideration of conviction under IPC," Mehta said. While Sengar's appeal against conviction is still pending in the HC, the CBI said, considering the intent, object and purpose of the POCSO Act, an elected representative who wields enormous power and is in a position of dominance over children will have to be treated as a "public servant" under the POCSO Act. Sengar's lawyers objected to the stay of the HC order citing that the former legislator has already undergone 9 out of the 10-year sentence in the murder case. The bench clarified that it is only when a convict or undertrial is released on bail that the courts are obligated to hear the accused/convict and not in a case where the suspension of sentence is on a legal issue. However, it said that "substantial" questions of law had also been raised by CBI and Sengar's lawyers and agreed to examine the issue after four weeks by when Sengar was allowed to file a response. The court culled out two neat questions of law - Is the concept of public servant alien when the victim is a minor and in the alternative, will the definition of public servant in the context of section 5(c) POCSO acquire a broader meaning unlike the definition of the same in IPC or Prevention of Corruption Act. In 2019, punishment under section 5(c) was enhanced to 20 years minimum sentence to remainder of life. "When a person is convicted, the courts will have to see the growing trend that the legislature wants to take a harsher view of the offence...your (CBI) argument can be that the legislature in 2019 considered the offence very serious as it is against the ethos of society and enhanced sentence," the bench remarked. The high court concluded section 21 of the IPC that defines public servant does not include MLA and the past rulings under Prevention of Corruption Act (PC Act) that include MLA as public servant will not apply to the offences under POCSO Act....