Congress leader Rahul Gandhi, who was convicted by a Surat court last month in a 2019 defamation case, was given temporary relief yesterday by the Sessions court in Surat, which extended his bail to April 13, while granting him liberty to abstain from appearing on the next date of hearing.
The Congress leader had moved the Sessions court against the March 23 order of the Magistrate court in Surat, which convicted and sentenced him to imprisonment for two years under Sections 499 (Defamation) and 500 (punishment for defamation) of Indian Penal Code.
Filed by a legal team of Senior Advocate R.S. Cheema and Advocates Kirit Panwala and Tarannum Cheema, the application contended that the complainant had no right to file the complaint. Since the comment targeted Prime Minister Narendra Modi, only he could have filed a complaint, it said.
The plea further pointed out that complainant Purnesh Modi was not an aggrieved person for the purposes of Section 499 of the Indian Penal Code (IPC), which criminalised defamation and thus, he had no right to file the complaint.
It said normally, a criminal law could be set in motion by anybody, but so far as the offence of defamation under Sections 499 and 500 was concerned, only a person aggrieved by the offence could file the complaint.
It further argued that merely because the complainant was a Modi and the defamatory remark had contained that word, the BJP leader did not get the right to file the complaint.
Gandhi said in his appeal that being an opposition leader, he had to be vigilant and critical of the government. While serving his duty as a critic of the government, he was bound to cause annoyance and embarrassment to those in power.
The application contended that since a politician in opposition could not always weigh his words in golden scales, it was incumbent upon the courts to focus on the essence and spirit of the speech made rather than on the tone and tenor.
The Congress leader pointed out that during his speech, he had mentioned six people as economic beneficiaries, including Nirav Modi, Mehul Choksi, Vijay Mallya, Lalit Modi and Anil Ambani.
He said some of these persons did not carry or bear ‘Modi’ as the caste or surname. What distinguished these persons as a group, was the manner in which they carried out their economic activity to the detriment of the national interest and their apparent closeness with the powers that be.
The application pointed out that the trial court convicted on the basis of two reasons – that the complainant was shocked at his statements, and that his reputation was hurt. It contended that these reasons did not make Purnesh Modi an aggrieved person for the purposes of Sections 499 and 500 IPC.
The person would only be aggrieved if an imputation was against him individually or as a member of a company, an association or collection of persons, that collection of persons being a definite, well-defined, identifiable, determinate group, he added.
On the allegations of defaming an entire community, Gandhi said there was no Modi Samaj or community established on record. He said the Modh Vanik Samaj and Modh Ganchi Samaj were the communities existing for years together. The constitution and other documents relating to the Modh Gachi Samaj or Modh Vanik Samaj have been brought on record and an attempt was made to show that they existed for a long time. But in these documents produced by the respondent/complainant, there was nowhere mention of Modi Samaj, he added.
The petitioner pointed out that the surname ‘Modi’ was used even within Muslim and Parsi communities, besides a number of Hindu castes.
He said there were 13 crore Modis and obviously as per the ratio of the aforesaid judgments, all 13 crore people did not have the right to file a complaint because it was not an identifiable, definite, determinate group or collection of persons.
Alleging that Purnesh Modi filed a complaint in hot haste with a view to use the same for electoral purposes in the run-up to the 2019 Lok Sabha elections, the petitioner contended that both the complaint and the evidence showed that the real grievance was the factum of alleged speech being sharply critical of the head of the Government.
The plea further said that the complainant admittedly was an MLA of Bharatiya Janata Party at the relevant time and was in-charge of the election to one of the Lok Sabha constituencies, which followed after the alleged speech.
It further noted that the offence of defamation fell within the category of ‘summons case’ as defined in Section 2(w) of the Criminal Procedure Code, 1973. However, in the present case, the procedure of a ‘warrant case’ was adopted.
As per the Congress leader, the issue of grant of probation, which was mandatory in a case like the present one, did not even find a passing reference in the order of sentence. The Trial Court proceeded to award the maximum punishment without giving any adequate opportunity of composing himself, assessing the situation and consulting the lawyer. The court further asked him to make his submissions on the question of sentence, he added.
The Congress leader took exception to the trial court not taking into consideration the fact that the accused was a first-time offender. Regarding the CJM referring to an instance when the Supreme Court admonished Gandhi, he said he never appeared before the Supreme Court in that case as an offender charged with an offence.
The order of the Apex Court did not in any manner provide admissible or relevant material for the trial court to proceed to award exemplary punishment using the same as crutches, noted the plea.
It said the CJM failed to refer to any precedent, where in an offence of defamation, the maximum sentence has been imposed to support the finding of sentence
As per the application, the Judge should also have been aware of the consequences of awarding a sentence of two years, namely mandatory disqualification. Such disqualification entailed the rejection of mandate of the electorate on one hand and huge burden on the exchequer on the other. It was expected that the Judge would make a mention of a consequence of this nature in the sentencing order, it added.
Earlier on March 23, Chief Judicial Magistrate H.H. Varma in Surat had sentenced Gandhi to two years in jail, after finding him guilty under Sections 499 (Defamation) and 500 (punishment for defamation) IPC.
Gandhi’s conviction under Sections 499 and 500 of the Indian Penal Code (IPC), both of which warrant a maximum sentence of two years, led to his disqualification from the Parliament, as per a Supreme Court order of 2013.
Judge Harish Hasmukhbhai Varma said that since Rahul was a Member of Parliament (MP), whatever he said, was bound to have a greater impact. Thus, he should have exercised restraint.
He was disqualified as a Member of Parliament (MP) of the Lok Sabha on March 24 and further barred from contesting elections till 2031.
As per Section 8 (3) of Representation of People Act, 1951, any lawmaker sentenced to at least two years in jail remains disqualified for six years upon their release. In this case, Gandhi’s disqualification will continue till 2031, as the six-year period will start in 2025, after completion of his two-year sentence.
During an election campaign at Kolar in Karnataka in April 2019, Gandhi had said, “Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have ‘Modi’ as a common surname?”