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Surat: A Surat Sessions Court Thursday to reserved its verdict in the appeal filed by Congress leader and former Member of Parliament (MP) Rahul Gandhi seeking stay on his conviction by the Magistrate court in the criminal defamation case against him.
Judge Robin Mogera heard Gandhi and the complainant, BJP’s Purnesh Modi before reserving verdict in the matter.
The order will be pronounced on April 20.
Background
Gandhi was convicted by a magistrate court on March 23 on a complaint filed by a Modi, who claimed that the Congress leader defamed the entire Modi community in a campaign speech at Kolar nearly four years ago.
Gandhi had said in his speech,
“Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have ‘Modi’ as a common surname?”
The petitioner, Purnesh Modi moved the Court claiming that by this statement, Gandhi defamed all the persons with ‘Modi’ surname.
He, therefore, filed a defamation suit against the Congress leader.
Magistrate Hadirash Varma convicted Gandhi for criminal defamation and sentenced him to two years in jail.
The judge said that Rahul Gandhi, through his statement, had insulted all persons with the Modi surname for his political interest.
As a result of his conviction, Gandhi was disqualified as a Lok Sabha MP.
Gandhi then moved the Surat sessions court challenging his conviction, through a legal team of Senior Advocate RS Cheema and Advocates Kirit Panwala and Tarannum Cheema.
Arguments
During the hearing on Thursday, Cheema, appearing for Gandhi, contended that as per defamation law, only an aggrieved person can file a complaint.
“This would mean a person, who is defamed will be aggrieved person. Explanation 2 to sec 499 (Defamation) of the IPC states it would be defamation if it is against a company, a group of persons etc. I am defamed only if my company, my group or collection of persons is defamed. Only then I can filed a complaint,” Cheema said.
Hence, the Court will have to examine whether Purnesh Modi had the locus to file the complaint, it was submitted.
In this regard, Cheema said that the speech by Gandhi needs to be analysed contextually to ascertain whether there was any intent on the part of the speaker to defame the group of persons with the surname Modi.
“My speech isn’t defamatory unless drawn out of context, looked under a magnifying glass to create or to make it defamatory,” Cheema underlined.
The litigation is nothing but an outcome of speaking up critically against Prime Minister Narendra Modi, it was contended.
“Basically a litigation inflicted upon me for daring to be vociferously critical about our PM. Trial was harsh and unfair to me,” Cheema said.
He also expressed reservations about evidence produced before the trial court and said that the whole speech was not brought on record.
“Law is if you want to bring something on record you need to bring the source of the speech. But in this case every mode failed as they did not bring on record the entire speech. The speech was made on April 13 in Kolar. It was reported by local press on April 14. The complaint was filed on April 15 and got his statements recorded on April 16. After this, till trial, there is no other evidence brought on record,” Cheema said.
Pertinently, the Senior Advocate also questioned the jurisdiction of the Surat Magistrate court in trying the case when the incident in question had transpired in Kolar.
“The complainant had received a message on his WhatsApp. He lives in Surat speech was made in Kolar, so jurisdiction is questionable. Suppose some ghost sends me a message and I received it while I am at my home in Chandigarh can a invoke jurisdiction of a court in Chandigarh,” Cheema asked.
He underscored that defamation law in its application needs a very close and minute examination.
“For instance, if someone says ‘You Punjabis are quarrelsome and abusive,’ then can I go and file a defamation case? Such words are often used for Gujaratis, other linguistic groups, religious entities etc,” Cheema said.
Pertinently, Cheema also questioned the complainant’s logic in claiming that 13 crore people with Modi surname were defamed when the total population of Gujaratis was only 6 crores.
“It is claimed there are 13 crore Modis across India. I find it mind boggling that a populace of that figure would be categorised as ‘collection of persons’. Gujarat’s population was nearly 6 crore in 2011,” Cheema said.
He also asked whether everyone with ‘Modi’ surname can constitute a class.
In this regard, he relied upon the statement of witness who testified that Modi isn’t a caste but Gosai is a caste and Gosai caste people are often termed Modis.
“There is so much confusion as to what Modi community is and this is coming from the testimony of the complainant and his witnesses. If we try to identify this group as such the evidence confuses us,” he said.
Importantly, Cheema highlighted how the trial court had pronounced Gandhi guilty and had imposed the maximum sentence for the offence immediately after the conviction.
“At 11:51 AM, my client is pronounced guilty and within half n hour he is handed over the harshest and maximum punishment. The judge has said that you are an MP and I want to send a message to the society,” Cheema pointed out.
“I am sure the court was very well aware that had it punished me even a one day less, I wouldn’t have been disqualified,” Cheema added.
Interestingly, Cheema also disputed the correctness of the Magistrate order with respect to an earlier Supreme Court observation against Gandhi.
“I want to express shock that the trial court for saying ‘Aapko Supreme Court warning diya tha. Bade dheeth ho aap kuch nhi samje.’ I am sorry I am using strong words but yes the judge was misled and was harsh,” the Senior Counsel submitted.
Cheema said that the Supreme Court’s observation came after Gandhi’s speech in Kolar and not before it.
“I tendered an apology to the Supreme Court (for attributing Chowkidar hi Chor hai comment to the top court) in November 2019. But I made speech in question in this case in April 2019. So how can the judge rely on the proceedings where the complainant has said I was admonished by the top court. The speech was made before the apology to the Supreme Court. So how can they interpret it and say I didn’t learnt from the proceedings in the top court,” Cheema asked.
After Cheema concluded his arguments, advocate Harshit Tolia made submissions for complainant Purnesh Modi.
He cited an order of Gujarat High Court on interpretation of Section 389 of Code of Criminal Procedure which states that courts have to record concise reasons for staying or not staying the conviction and sentence.
“Losing ones job is no ground for this court to exercise its extraordinary powers to suspend the sentence; Gujarat High Court has already held this,” Tolia said.
The law is that the moment one is convicted and sentenced, he or she becomes disqualified as an MP/MLA, Tolia said.
“Please consider the gravity of the offence. He is the sitting MP. He was the president of the second largest party at the time when he gave a speech. His party was India’s first ever largest party. His speech made a huge impact on the people of India. He also tried to sensationalise his own speech,” it was contended.
Tolia further said that part of the speech against ‘Modi surname’ was what hurt his client.
“In his speech, he spoke of PM Modi but didn’t stop there and went beyond it. He has said, ‘Saare choron ka naam Modi Modi Modi hi kyu hai? Dhoondo aur bhi Modi milenge’. My client is hurt by this part of the speech thus the complaint,” Tolia stated.
Tolia also justified the maximum punishment imposed on Gandh by the trial court,
“First is he was conscious as he was addressing the rally. He addressed PM Modi and was so childish that he wasn’t aware that referring to Modi surname would mean all the Modis?” Tolia submitted.
He also said that an MP does not deserve any special treatment.
“Suppose one doctor is convicted, the medical council will act against him. If a lawyer commits an misconduct his Sanad will go. Similarly, if an MP is convicted he will be disqualified. What is so special or exceptional in this case,” Tolia asked.
Tolia also said that Gandhi cast imputations on the Magistrate court after the verdict was delivered.
“The convict, his party leaders his associates are making unfair comments on the Court. They have also made several contemptuous statements against the Court and its judgment. Gandhi is going in front of large number of public and making statements against the Court. He is saying that within one month of withdrawing the plea from the Gujarat High Court, the case was decided by the Magistrate. Isn’t this an imputation against the Judge,” Tolia argued.
He also said that Gandhi has not yet apologised yet for his remarks.
“Gandhi’s conduct deserves no sympathy and his sentence shouldn’t be suspended. He isn’t saying a sorry. This is his arrogance he can’t say a sorry. He is such a tall leader. Such a big personality, he can’t say a sorry but only show arrogance. He isn’t entitled to any relief at this stage,” it was vehemently contended.
Tolia also highlighted how Gandhi had brought with him other Congress leaders while filing his appeal.
“He is bringing legislators to the Court. They are showing the public that yes we are legislators and we are supporting our leader. Legislators must understand that they are first the servants of the public then their party and then their leader. If you want to support your leader and stand in solidarity with him then better resign from your post and then support him everywhere,” it was submitted.
Cheema in his rejoinder submissions said that Tolia’s submissions were totally frivolous since the complainant had no good case on merits.
“What kind of arguments are these that legislators are coming in his support to the court etc. If people are coming to support me can I stop them? There should be limits to irrespective pleadings to be made in the Court. They have nothing on merits so making such frivolous arguments,” Cheema said.
He also took exception to Tolia’s argument that Gandhi should apologise.
“Milords what has shock me more is Mr Tolia seeking an apology from my client. Why should he apologise? Do they have no legal arguments to make? How can they ask my client to say a sorry? Is it a pre-condition for an appeal,” Cheema demanded.
