A Sessions Court in Surat is hearing an appeal by Congress leader Rahul Gandhi challenging his conviction by a magistrate court in a criminal defamation case for his "all thieves have Modi surname" remark.

Judge Robin Mogera is specifically hearing Gandhi's plea for a stay on his conviction.

The sessions court had earlier this month extended the bail granted to Gandhi by the magistrate court till today.

The now disqualified parliamentarian from Wayanad, Kerala was convicted by a magistrate court on March 23 for his controversial remark "All thieves have Modi surname."

Gandhi had, in a political campaign in 2019 in Kolar, Karnataka, linked Prime Minister Narendra Modi with fugitives like Nirav Modi and Lalit Modi.

He had said, "Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"

Purnesh Modi, a former BJP Member of Legislative Assembly (MLA), took exception to the said speech claiming that Gandhi humiliated and defamed persons with the Modi surname.

The magistrate court in Surat accepted the contention of Modi that by his speech, Gandhi has intentionally insulted the people with a 'Modi' surname.

The magistrate court had 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.

Live updates from the hearing below.

Judge Robin Mogera has sat. Senior Advocate RS Cheema to make submissions for Rahul Gandhi.

Sr Adv Cheema: Section 389 of the Criminal Procedure Code provides for suspension of sentence pending appeal.

The court has powers to suspend the sentence pending appeal. The reply filed by the complainant only states that the court has 'discretionary' powers which can be exercised only in rarest cases.

Sr Adv Cheema is citing judgments of the Supreme Court on interpretation of Section 389 of the Criminal Procedure Code.

Sr Adv Cheema: It is true that the power has to be exercised cautiously.

Cites Navjot Singh Sidhu vs State of Punjab case.

Sr Adv Cheema: Merits of the case obviously need to be considered.

While reading from a judgment, he says, "The power is an exception but the court must consider the consequences of conviction."

Sr Adv Cheema: There is no hard and fast rule as such for staying a conviction. But the courts have settled the law on this point. The court has to give a reasoned order for staying the sentence.

Sr Adv Cheema: Supreme Court has clearly said that in cases where sentence is life, death or more than 10 years, the courts should be slow in staying conviction. Even cases where moral turpitude is involved are among these categories.

Sr Adv Cheema: Court has to consider if the convict will suffer an irreparable loss and an irreversible injustice if the discretionary powers aren't exercised.

Sr Adv Cheema: Loss of constituency due to conviction and sentencing, disqualification are also considered to be 'exceptional' circumstances by the Apex Court for staying conviction.

Sr Adv Cheema: Most important fact to be examined that he was elected member of Lok Sabha in 2019 from Wayanad, Kerala by a margin of 4,31,070 votes, which was a record margin. But he has been disqualified now.

Sr Adv Cheema: Irreparable loss and irreversible injury are the two factors.

have to be the member of the Lok Sabha till it's term comes to an end.

Sr Adv Cheema: We will need to examine the speech and also the locus of the complainant, whether he is an aggrieved person, as per law or not.

Sr Adv Cheema: Law mandates 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.

Sr Adv Cheema: I am defamed if my company, my group or collection of persons is defamed. Only then I can filed a complaint. The speech needs to be read both textually and contextually because law says defamation is caused when the person intends to cause defamation or has knowledge or at least have a reason to defame.

Sr Adv Cheema: My speech isn't defamatory unless drawn out of context, looked under a magnifying glass to create or to make it defamatory.

Sr Adv Cheema: Basically a litigation inflicted upon me for daring to be vociferously critical about our PM. Trial was harsh and unfair to me.

Sr Adv Cheema: My colleague Mr Panwala has conducted a textbook perfection trial. This was an illustrative case with regards to electronic evidence. I need to say this (smiles).

Sr Adv Cheema: They claim to have read the news article of my speech in Karnataka.

Law is clear news article cut out is not a paper but only the newspaper as a whole is a paper.

We are living in dangerous times. Things are recorded whenever we speak. Each speech is recorded by the Election Commission. Even YouTube has the videos apart from other social media.

Sr Adv Cheema: 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. 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.

Sr Adv Cheema: 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?

Sr Adv Cheema: The complainant submitted some CDs from the office bearer of a local BJP office.

These documents were not put to the accused by playing it to the accused like "did you make this speech?" etc

Complainant then goes to Gujarat High Court seeks stay on trial on the ground that he wishes to bring in some more evidence on record but he didn't do it.

But with change it guard (change in lower court judge) he said there is ample evidence now and withdrew his plea from HC.

Sr Adv Cheema: There is one Sankat Mochan in this matter. He suddenly became an eyewitness for the complainant after 2 years of filing of the case.

He exaggerated the speech. We told him that you are exaggerating but he said no, the material (speech copy) made available is less whatever he has testified was the content of the speech.

Sr Adv Cheema seeks a five minutes break.

Court allows him to take a break.

Sr Adv Cheema: I have seen a very strange judgment that the trial court judge made a hotchpotch of all the evidence on record and claimed that he could find my guilt from my sec 313 statements.

Sr Adv Cheema now reads from Rahul Gandhi's section 313 statements recorded by the Magistrate Hadirash Varma.

He said he didn't utter words "Modis" which are attributed to him.

Sr Adv Cheema: You have to show that the statement is absurd.

He has clearly said he didn't utter such a word.

The judge has hotchpotched the evidence as the newspaper cutting spoke different to what the speech CD indicated.

Sr Adv Cheema: This case will be a historic one not because of the individual, who is sentenced...

Spoken word even in England has now become a civil offence.

Law in its application need very close and minute examination.

Sr Adv Cheema: For instance, if someone says You Punjabis are quarrelsome and abusive etc.

Can I go and file a defamation case? Such words are often used for Gujaratis, other linguistic groups, religious entities etc.

Sr Adv Cheema is reading from some judgements on point of who can be an aggrieved person to file a defamation complaint.

Sr Adv Cheema: 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.

You cannot have a collection of persons in such a huge population.

Sr Adv Cheema reads from Complainant's statement, where he has stated that Modi surname isn't an association but has said that there are over 13 crore Modis.

The complainant has further said that he has no knowledge of Lalit Modi or Nirav Modi fall in his caste.

Sr Adv Cheema reads from other witness' statement, who claimed that after reading the speech he felt insulted because he has Modi surname and also because it was against Narendra Modi.

Senior Advocate RS Cheema now reads from another witness' statement who testified that Modi isn't a caste but Gosai is a caste and people call Gosai caste people as Modis.

Sr Adv Cheema: 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.

Sr Adv Cheema: 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.

Also, I want to express shock that the trial court for saying "Aapko Supreme Court warning diya tha. Bade dheeth ho aap kuch nahi samje."

I am sorry I am using strong words but yes the judge was misled and was harsh.

Sr Adv Cheema: 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 a 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 ?

Sr Adv Cheema: Even the Magistrate in the order has said that I was warned by the Supreme Court. But the warning was in November and I made the speech in Kolar in April 2019, which is nearly seven months prior to that.

Sr Adv Cheema: I am sure the court was very well aware that had it punished me even one day less I wouldn't have been disqualified.

And the next question I ask is - Yadi mera gunaah itna bada tha toh mahoday (judge) mujhpe fine toh lagaiye.

These are perfunctory orders.

Sr Adv Cheema: In a democracy an Opposition is an integral importance. Auditing the govt. Holding the govt accountable. Nexus between govt and the big economic entities are all issues that the general public is concerned.

When we look at the speeches we aren't looking at a murderer a robber etc. We are looking at a speech made during an election campaign telling people why the present govt needs to go.

So in such cases, courts need to consider all these facts. Larger public interests needs to be considered.

Sr Adv Cheema concludes his arguments.

Advocate Harshit Tolia now makes submissions for complainant Purnesh Modi.

Adv Tolia cites an order of Gujarat High Court on interpretation of sec 389 of CrPC which states that courts have to record concise reasons for staying or not staying the conviction and sentence.

Adv Tolia: Accused has identical 10 to 12 cases of criminal defamation.

Supreme Court has reprimanded him.

Even after court held him guilty he maintains to have not done anything wrong. This is arrogance.

Adv Tolia: He says that he is a sitting MP and due to conviction and sentence he is disqualified. He claims that there can be bye-elections. He wants to contest in the coming elections. He has claimed to have won with a thumping majority etc.

But can these factors be considered at this stage ?

Adv Tolia: They have argued that I filed a complaint based on a newspaper cutting. But I don't have to prove my case beyond a reasonable doubt at that stage.

They have submitted voluminous documents now. I would like to file a response to the same.

But is this court required to go into such details at this stage ? That can be done during hearing of the appeal.

Adv Tolia is reading from various judgments to bring home his point that the "discretionary powers" of the court to stay or not to stay the conviction etc has to be done in the rarest of rare cases.

Adv Tolia: Losing ones job is no ground for this court to exercise it's extraordinary powers to suspend the sentence, Gujarat High Court has already held this.

Adv Tolia: The law is the moment you are convicted and sentenced you are disqualified. 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.

In his speech, he spoke of PM Modi but didn't stop there and have gone 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.

Adv Tolia: No leniency needs to be shown in this case. Being an MP if he commits an offence it becomes more grave.

Adv Tolia cites a case of an MLA's conviction, who had slapped a doctor. His conviction was suspended after he entered into a compromise by apologising to the victim therein.

"But nothing of this sort has happened in the instant case. The above is an exceptional circumstance in which discretionary powers need to be exercised. But in the instant case there has been no such circumstance or apology (from Rahul Gandhi)," Tolia submits.

Adv Tolia: Speaking about his thumping majority etc, this court must note that he contested from two seats one in Wayanad, Kerala and one in Amethi, Uttar Pradesh.

He's been contesting from Amethi for years in fact his forefathers have been contesting from that seat. But he miserably lost that seat with a thumping majority to the opponent (Smriti Irani).

So they cannot use thumping majority argument as he already lost a bastion of his party. I can say he is a winner if in Wayanad he is a loser in Amethi.

Court takes recess break. Hearing to resume again at 3 pm.

Hearing resumes.

Advocate Tolia continues with his submissions.

Adv Tolia: Right to be elected is not a fundamental right. The law is the moment an order is pronounced the elected person is disqualified.

Adv Tolia justifies the maximum punishment.

"First is he was conscious as he was addressing the rally. He addressed PM Modi was he so childish that he wasn't aware that referring to Modi surname would mean all the Modis?" Tolia submits.

Adv Tolia: 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?

Adv Tolia: There is nothing so exceptional or special in the impugned order that it shocks the conscience of this court. Thus, the discretionary powers need not be exercised.

Adv Tolia is reading the judgment of the Magistrate Court by which Rahul Gandhi was convicted and sentenced to two years sentence. He is reading the evidence part of the judgment.

Adv Tolia continues reading from the impugned judgment and justify that the Magistrate correctly identified his client Purnesh Modi as an aggrieved person.

Adv Tolia: Just like there is Patel community, Jain community in a similar way there is Modi community too.

Adv Tolia: Law doesn't make any difference between ordinary citizen or an MP.

May be as per his (Rahul Gandhi's) standard these are highly exceptional circumstances but these are the basic circumstances as per the general public.

Adv Tolia now counters the argument that SC had admonished Gandhi in November 2019 and he had delivered the speech in April 2019 so the Magistrate court shouldn't have considered the top court proceedings.

Adv Tolia: This is most important aspect justifying the maximum punishment. It shows his antecedent.

Adv Tolia: 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.

He is trying to pressurise the Court.

Adv Tolia: 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 ?

They are saying "save the judiciary" in front of the public.

Adv Tolia: Gandhi's conduct deserves no sympathy and his sentence shouldn't be suspended.

"He isn't saying a sorry. Chalo ho gyi galti aisa maan lo. Nhi manna hai inhe. This is his arrogance he can't say a sorry," Tolia submits.

Adv Tolia: 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.

Adv Tolia: We have seen that whenever appeal is filed only accused comes to the court. But he is parading every leader of his party in the Court. 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.

Adv Tolia: He has only shown arrogance and child and immature conduct to pressurise this Court.

Adv Tolia seeks more time to respond to what he claims to be fresh documents filed today by Gandhi's legal team.

Sr Adv Cheema objects to the request. "Why to waste the courts time like this then? You could have told it in the morning itself," Cheema tells Tolia.

Sr Adv Cheema counters submissions of Adv Tolia.

"Around 13 crore people of different castes, religions, sub-castes etc cannot be brought together to be made identifiable group of Modis. The merits of the case need to be considered minutely. Your honour needs to consider the law laid down by the Supreme Court, which has said only in cases of moral turpitude, corruption, offence with more than 10 years jail term, life term or death sentence cases are exceptions for not staying or suspending the sentence," Cheema.

Sr Adv Cheema: 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.

Sr Adv Cheema: My client Mr Gandhi had said in his sec 313 statements that he loves his countrymen and doesn't discriminate between them. He says that he had no intention to hurt the complainant or anyone else but made a speech against the PM. Where is arrogance here?

Sr Adv Cheema: 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?

Sr Adv Cheema: Also, the list of cases that Mr Tolia has shown those all are politically motivated ones just like the instant case. All of them are filed by people belonging to political opponents. I am not convicted in any of these cases.

Adv Tolia stands up to say something.

Adv Tolia: sir, I forgot to point out one thing.

Sr Adv Cheema: Pls don't say anything now and go. You aren't old like me (smiles)

Judge Robin Mogera closes the matter for orders.

To pass orders on interim application filed by Gandhi seeking to stay his conviction on April 20.