"He is people's representative; must make statements within limits and bounds": Gujarat High Court in Rahul Gandhi defamation case

The Gujarat High Court on Saturday said that Congress leader Rahul Gandhi is an elected representative of the people and must, therefore, be cautious while making statements [Rahul Gandhi vs Purnesh Modi]..Single-judge Justice Hemant Prachchhak made the remark while hearing Gandhi's plea seeking stay on his conviction by a Magistrate court in a criminal defamation case against Gandhi for his remark "all thieves have Modi surname" at an election rally. "In fact, it is his more duty towards the people at large. He is representing the people at large. He must make his statements within limits and bounds," the judge orally remarked.Gandhi in turn told the Court that has not committed any grave or heinous offence like murder or any offence involving moral turpitude. "Nobody can suggest that my case falls under moral turpitude or serious category. In fact, my case is a bailable one and it is not against the society at large," Senior Advocate Abhishek Manu Singhvi submitted in behalf of Gandhi.Singhvi also questioned the locus of the complainant Purnesh Modi in filing the complaint in the first place."My case is that this appeal must succeed because law doesn't permit such complaints. Not anyone from the 13 crore people (with Modi surname) can come and file a complaint except the ones named in the speech. It is not even their case that I named Mr. Purnesh Modi," Singhvi said..Background.A sessions court in Surat had, on April 20, earlier dismissed Gandhi's plea seeking suspension of his conviction by the Magistrate court.In a detailed order, the sessions court held that Gandhi's disqualification would not amount to be an irreparable or an irreversible loss to him and refused interim relief to him.The now disqualified parliamentarian from Wayanad, Kerala was convicted by a Magistrate court in Surat on March 23 for his remark "all thieves have Modi surname" which he had made at an election rally in Karnataka's Kolar in 2019.Gandhi had, in his speech 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.In his 168-page judgment, Judge Hadirash Varma said that since Gandhi is a Member of Parliament (MP), whatever he says will have a greater impact. Thus, he should have exercised restraint, the Magistrate ruled."The accused had taken the reference of the surname of the current Prime Minister Shri Narendra Modi, to satisfy his political greed and insulted and defamed 13 crore people living in the whole of India having the surname 'Modi'" the judge held.The sessions judge refused to stay the Magistrate court conviction leading to the present plea before the High Court..Arguments today.During the hearing today, Senior Advocate Abhishek Manu Singhvi, representing Gandhi, submitted that the offence involved is neither of serious nature nor of moral turpitude, which are two tests to deny suspension of conviction.He also questioned the locus of the complainant. "So your lordship will have to see if there is any intrinsic strength in my case and for that my argument that the complaint cannot be filed by a non-identifiable class, will have to be considered. Law says only a person with a locus can complaint and that locus cannot be eliminated by saying that anyone from a non-identifiable class can file a complaint," Singhvi said.He vehemently contended that only the people actually named by Gandhi in his speech can file a complaint of criminal defamation. None of the people Gandhi mentioned in his speech filed any complaint, he pointed out. "Law says only the aggrieved person can lodge a complaint. You cannot circumvent it to suit the non-identifiable group as in the present case. None of the 3 persons that I named have sued me but someone from the so-called 13 crore group, has filed a complaint. How is that maintainable at all," Singhvi demanded.Allowing this complaint would mean that anybody can come and file a criminal defamation case, Singhvi said..He further argued that no evidence in terms of Evidence Act or Information Technology Act was produced to justify the criminal defamation proceedings."In case of a speech, there will be three probabilities - The complainant himself heard the speech and was there so he files a complaint. Second is maybe a reporter attended it and filed a story, he can depose. Or lastly, some other person, who attended the event can authenticate the speech. None of the witnesses present in this case, are from the above three categories," Singhvi said..Singhvi also pointed out that the cases relied upon by the trial court to convict Gandhi were ones involving grave and heinous offences like rape and murder."The judgment relied upon by the trial court to convict me, actually deals with a serious case of life imprisonment. The other judgment of Navjot Singh Siddhu vs. State of Punjab, was of a murder which later converted into attempt to murder. In fact, even Siddhu got suspension of sentence. Another case cited by the trial court involved rape and abduction, who too got the conviction suspended. So basically the trial court is applying an elephant to a mice, not apple to oranges," Singhvi contended.It was further argued that the offence involved was bailable and not an offence against the society at large."Nobody can suggest that my case falls in moral turpitude or serious category. In fact, my case is a bailable one and it is not against the society at large. All the cases relied by the trial court are offences against the society. Yet courts have exercised powers under section 389 of the Criminal Procedure Code (to suspend the sentence)," Singhvi argued..He further said that not staying the conviction would cause irreversible loss to Gandhi and the electorate of Wayanad. "When I miss sessions in the parliament, it entails a loss to me of raising my democratic voice in the Parliament. Also entails loss to my constituency as their MP's voice isn't be raised. The Election Commission has this thumb rule that no seat can be left unrepresented for a long time.....Later, suppose in a bye-election, Mr Rawal wins and later I am acquitted. Can the Court then ask Mr Rawal to vacate the seat and install me back? Obviously no. Even Election Petitions won't help me. All this for what, have I murdered someone? Have I assaulted anyone? I have done alleged criminal defamation at a first appeal stage. There are three appeal stages in this law. But for an alleged defamation, I will have to lose my six to eight years," Singhvi asked.Singhvi emphasised that Gandhi will lose around 8 years of his political career, if his conviction is not stayed."If my conviction isn't stayed, I will stand disqualified for a period which can be said to be virtually semi-permanent period. In politics, it is said even a week's time is long and we are talking about eight years here. I do not deserve this," it was submitted..Senior advocate and public prosecutor Mitesh Amin, representing the Gujarat government told the bench that though the offence against Gandhi is non-cognizable and bailable, those arguments cannot be made raised now as he has already been convicted."When the legislature allows maximum sentence of two years and the Magistrate has found it to be a fit case for imposing the maximum punishment, it can award the same. This is not the stage for the appellant to argue on quantum of sentence. The court has not imposed sentence beyond the permissible term. At this stage, this court only has to look at the seriousness of the case. And admittedly, both Magistrate and Sessions Courts have already considered the seriousness of the case," the prosecutor argued. However, the court sought to know about the lacunae in the trial proceedings as pointed out by Singhvi. To this, Amin responded that these details can be looked into at the time of the final hearing of the appeal. .Senior Advocate Nirupam Nanavati, appearing for the complainant Purnesh Modi, said that the plea by Gandhi is not maintainable since it was not clear whether it was filed as revision plea or for quashing of the case under Section 482 of the Code of Criminal Procedure (CrPC). "They are confused as to under what provision have they approached this court. They say this is a revision application but in the same breath say that it can also be a petition under Section 482 of CrPC. They are not clear what provision of law are the invoking. This petition, filed as it is, is not maintainable under law," Nanavati said."Mr. Nanavati, this is more so a revision application," the bench said."The court has not called for Records and Proceedings. The court should have had called for translated copies of the witnesses, which are in Gujarati," Nanavati responded."If that is your contention Mr Nanavati, I give you time till Tuesday (May 2) to file your affidavit. Nothing beyond that. I have to complete these proceedings since sufficient time has been invested in this now," the bench responded..The Court then posted the case for consideration on May 2. "Let them file their reply. Will conclude everything on Tuesday itself. Wont take more time. Even I am not free after May 5, I am going out of India. So have to conclude all this soon," the bench said.