Legislators not 'public servants' under Section 21 IPC for POCSO aggravated offenses; sentence suspended post minimum term service pending appeal.

1. The present application has been filed by the Appellant under Section 389(1) read with Section 482 of the Code of Criminal Procedure, 1963 ["CrPC"] seeking regular suspension of sentence during the pendency of the appeal.

2. The Appellant herein has been convicted for offences punishable under Sections 376 /363/366 of the INDIAN PENAL CODE , 1860 ["IPC"] read with Sections 5 (c)/6 of the Protection of Children from Sexual Offences Act, 2012 ["POCSO Act"] vide judgment dated 16.12.2019 passed by the learned District & Sessions Judge – West District, Tis Hazari Courts, Delhi ["learned Trial Court"] in Sessions Case No. 448/2019 arising out of FIR No. 96/2018 registered at Police Station Makhi, Unnao, Uttar Pradesh, re-registered as RC-08(S)/2018, PS CBI/ACB/Lucknow ["Impugned Judgment"]. Vide a separate order on sentence dated 20.12.2019 passed by the learned Trial Court, the Appellant has been sentenced to undergo life imprisonment for the remainder of life, along with a fine of Rs. 25,00,000/- and an additional compensation of Rs. 10,00,000/- payable to the mother of the survivor. Against the Impugned Judgment as well as the Order on sentence, the Appellant has approached this Court by way of the Criminal Appeal No. 53 of 2020, which is pending adjudication.

3. For a proper adjudication of the present application seeking suspension of sentence during the pendency of the Appeal, this Court deems it fit to postulate the background which gives rise to the Appeal.

4. The incident of rape upon the Victim/Survivor came to be registered under Case No. SC – 448/2019 arising out of FIR No. 96/2018 at PS Makhi, Unnao under Sections 3 63 , 366, 376, 506 of the IPC and and 4 of the POCSO Act. Investigation into these allegations was handed over to the Central Bureau of Investigation ["CBI"] vide a Notification dated 12.04.2018 issued by the Government of Uttar Pradesh, after which a case RC 08(S)/2018 dated 12.04.2018 came to be registered in the ACB, CBI, Lucknow Branch.

5. Pertinently, apart from RC 08(S)/2018 which involved the allegation of rape upon the Victim/Survivor, the CBI was also entrusted with the investigation into the following two cases:

(i) RC 09(S)/2018 under Sections 3 23, 504, 506 IPC and /25 Arms Act, lodged against father of the Victim/Survivor; and

(ii) RC 10(S)/2018 under Sections 147, 323, 504 read with Section 302 IPC, lodged by the mother of the Victim/Survivor for the alleged assault upon her husband.

6. Subsequently, another case arising out of FIR No. 316/2018 dated 20.06.2017 under Sections 363 , 366, 376D IPC pertaining to alleged offences of kidnapping, confinement for sexual exploitation and gang rape upon the Victim/Survivor was transferred to CBI for further investigation vide Order dated 13.04.2018 passed by the High Court of Judicature at Allahabad in WP (PIL) 01/2018. Resultantly, RC 11(S)/2018 dated

7. A chargesheet was filed by the CBI before the Special Judge (POCSO) CBI – IV, Lucknow on 11.07.2018, which was also supplied to the Appellant as per Section 207 CrPC, an