Rahul Gandhi plea to stay conviction: LIVE UPDATES from Gujarat High Court

The Gujarat High Court is hearing the appeal filed by Congress leader Rahul Gandhi seeking stay on his conviction by a Magistrate court in a criminal defamation case against him [Rahul Gandhi v Purnesh Modi].Single-judge Justice Hemant Prachchhak is hearing the case. 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.Live updates from the hearing below..Senior Advocate Abhishek Manu Singhvi appears for Rahul Gandhi. Singhvi: The offence is neither of serious nature nor of moral turpitude, which are two tests for denying, in a relevant case, to suspend conviction..Singhvi: There is no identifiable class to at all maintain a complaint. So maintainability of the complaint itself is questionable.Court: But that will have to be argued in the appeal. We are only concerned with section 389 as the first appellate court is seized with your appeal. .Singhvi: Under strong circumstances, if there is a prima facie case or not. Your lordships will have to consider this. Court: But that was considered by the trial court and you were granted bail..Singhvi: 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: My third argument is that there are about four to five serious ex-facie vitiating factors about the trial's process that led to my conviction. My fourth argument is section 202, that was brought in to protect from hasty prosecutions. My fifth argument would be the offending speech or sentence, there is no evidence in terms of Evidence Act or IT Act has been produced to justify the proceedings..Singhvi: In case of a speech, there will be three probablities - I myself heard the speech and I was there so I file a complaint. Second is maybe a reporter attended it and file 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: My final and most important aspect of argument would be the irreversible and irreparable loss. My client represented a constituency but suppose he misses the same due to this conviction, his duty towards the people... Court: 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. .Singhvi: Today the consequence I am facing is that I have missed the previous session and might also miss the second session. Another consequence is to the constituency that I represent. They are deprived of their representation. Third, what if a re-election is allowed. Can any court in such a situation reverse it? It is irreversible loss to me..Singhvi: Your lordships have already exercised powers under section 389 in much serious cases but mine is not a serious one or one involving moral turpitude. 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 later converted into attempt to murder. In fact, even Siddhu got suspension of sentence. Another case cited by the trial court involved a rape and abduction case, who too got the conviction suspended. So basically the trial court is applying an elephant to mice, not an apple to orange..Singhvi: Milords, I thus, request that the guidelines state that section 389 cannot be exercised if the case is a serious one or involves moral turpitude. Sorry for repeating but yes my case does not involve serious or moral turpitude. The judgments relied on to convict me by the trial court, all involve serious cases or moral turpitude cases..Singhvi: 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..Singhvi now cites cases related to Members of Parliament (MPs) and Members of Legislative Assembly (MLAs), whose convictions have been suspended to avoid their disqualifications, by courts..Singhvi: If in these cases, which are serious offences and against the society, the courts have granted relief under section 389 then why not mine case, which I repeat is not against the society from any stretch of imagination..Singhvi: 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 being raised. The third is it is general detriment to the public interest of the country that the Parliament is without one voice. Maybe in the sixth or seventh month, my appeal is allowed and I am acquitted, can the court restore to me those losses? The obvious answer is a NO as this is an irreversible loss..Singhvi: 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 alleged criminal defamation at a first appeal stage. There are three appeal stages in this law. But for alleged defamation, I will have to lose my six to eight years.Singhvi: Suppose your lordship ignores everything, which I don't mean (laughs) but yes you will have to consider the 'balance of convenience'.Singhvi: Milords this is a case where clearly there is a lack of prima facie case. In my career, I haven't seen conviction in criminal and mostly if convicted it is five to eight months. So please consider the fact that for a first time offender in a non-cognizable and bailable case, should effectively make him lose his seat, irreversibly? This is a serious and urgent situation which cries out for help..Singhvi is now reading judgments of various High Courts, which have granted suspension of conviction in cases, which involve serious crimes like murder, rape, abduction etc..Singhvi: Please consider the fact, if relief isn't granted my client will lose eight years of his career. For the first time alleged offender, the court has been harsh and handed down the maximum punishment. Had there been even a day less sentence, disqualification would not have come. .Singhvi: In criminal law, a victim or complainant has to first be hurt (in defamation by the utterance etc), then must monitor if the PP is properly prosecuting the case. Later, if there is conviction or not he can file an appeal. In my case, when the judgment was pronounced etc the role of the complainant ends there. What would be the possible interest in disqualification? He should be content with the conviction and sentence. It is between the Court and me for suspension as there is disqualification? There can be no locus for the complainant for disqualification. Section 378 of the CrPC mandates that the complainant has to take leave of the court if there is an acquittal..Singhvi: My case is that this appeal must succeed because law doesn't permit such complaints. Not anyone from the so-called 13 crore people 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: 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: The complainant has only made mockery of the law. Allowing this complaint would mean that anybody can come in and file a defamation case. It would make the exceptions redundant..Singhvi now reads Purnesh Modi's statements before the Magistrate Court in Surat. "It states that several other castes are identified as Modi community. This would mean anyone from that 13 crore group thing, can come and file a case. I am not at all agreeing with the number but," Singhvi submits. .Singhvi: (on a lighter vein) the most important quality for those in public life is thick skinned. It is a best quality for them. It is a very useful quality for those in public life. Being over-sensitive is 'self-destructive'..Singhvi is again reading from a witness' statement, wherein it has been stated that he is related to Prime Minister Narendra Modi and his brother and that they have formed a Trust of Modh community. "It can be safely said this is a conglomeration like India, of diverse castes, sub-castes and sub-groups. You just cannot give locus to anyone to file complaints like this. This witness has clearly said that Lalit Modi, Nirav Modi, Mehul Choksi, Vijay Mallya none belong to the caste of complainant Purnesh Modi or that of PM Narendra Modi or even the said witness," Singhvi submits..Singhvi: The complainant has himself said that in 1988 he got his surname changed from Butwala to Modi. He relies upon the 'Modi Samast Gujarat Samaj' a Trust he himself made in 1980s. Is this maintainable?.Singhvi: If my client would have said that 'Mr Purnesh Modi.... etc' only then the complaint would have been maintainable. But here, he has named PM Narendra Modi, which even the Sessions Court in its order has noted that my client defamed PM Modi. So, law mandates PM Modi to file a complaint and not anyone from the so-called 13 crore community..Singhvi: Another very important point. The Magistrate Court has relied upon the order passed by the Supreme Court admonishing my client to be careful in future, for his statements in the Rafael Deal case. Admittedly, the speech in the instant case was made in April 2019 and the SC proceedings was in November 2019. There is no law where you can say the order of the top court asked me to be careful retrospectively. This mistake is probably because I was handed down maximum punishment within 10 minutes of conviction. This has shaken my confidence milords..Singhvi: On May 2, 2019 when the Magistrate Court issued summons to my client, he had Zero evidence before him. There was no prosecutable evidence before the Magistrate yes summons were issued. The only material was a WhatsApp message sent to Mr Purnesh Modi of a news clipping. Also, the sender of the message is not known. This is a hearsay evidence. William Shakespeare has said, "Nonsense upon stilts." But here it is "hearsay upon stilts.".Singhvi: So after filing complaint in April 2019, the prosecution records statements of witnesses in June 2021. After 2.5 years, the complainant seeks to re-open the case saying that he wants the court to play the video of the speech in front of the accused Mr Gandhi. However, the Magistrate dismissed the complainant's plea. This was basically an after thought on part of the complainant. He then moves the High Court seeks stay in March 2022 on the trial. Then in February 2023 after nearly a year, nothing has happened or changed but suddenly he comes back to the High Court and seeks to vacate the stay that he himself got..Singhvi: Within a month of vacating the stay, while nothing new has happened, the judgment is out. It must be noted that during this one year's stay, nothing has changed not a single comma or full-stop has been brought on record forget a sentence. What was 'insufficient evidence' a year before suddenly becomes 'sufficient.' How is this even possible? In fact, even the High Court did not question him anything. My take is, usually in normal course, a court would pull up the advocate for wasting a year's time of the court..Singhvi is reading judgments of various High Courts and Supreme Court..Singhvi: There is no certificate under section 65B of the Information Technology (IT) Act to prove the electronic evidence produced by the complainant. Then there is a 'Magic Witness' called one Yaji, who suddenly crops up in June 2021 and is closely linked with the complainant. He is as good as the complainant. He is a local BJP Member..Singhvi: Yaji was never mentioned in the list of witnesses at least till June 2021. He brought in a CD claiming to be given by the Election Commission..Singhvi reads out the testimony of Mr Yaji, who was the then Regional Director of BJP in Bangalore and was coordinating the polls there in 2019..Bench rises for lunch. Singhvi tells the court that he would need 'short time' to complete the arguments..Bench reassembles for further hearing.Sr Adv Singhvi to continue making submissions. .Singhvi is reading judgments of the Supreme Court wherein the top court has reversed orders of High Courts in cases where the High Court did not suspend the sentence/conviction..Singhvi: The weight to be given to the complainant in the present proceedings on the point that they are not concerned with sentence etc but with disqualification, which is a political realm. The complainant cannot say that he does not want to see me in the Parliament and thus he is here to oppose my plea for suspension of conviction and sentence..Singhvi is now summarising his submissions as he would now complete the same. "I would say that my case isn't a serious offence, or cognizable and non-bailable. My offence isn't against the society. There has been no law and order situation due to my speech. All these grounds are best for a court to exercise its powers under section 389 of CrPC," Singhvi tells the court..Singhvi: 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..Public Prosecutor Mitesh Amin for Gujarat Government now makes submissions. Amin: Proceedings under section 389 empowers a Public Prosecutor to make submissions. We have a statutory right of audience in this matter since it is under section 389..Amin: 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..Court: But what about the lacunae in the proceedings that Mr Singhvi has pointed out? Amin: Milords, all those details can be looked into at the time of hearing the final appeal. You please look if there is any perversity in the order or not. .Amin: Though the offence is non-cognizable and bailable but the moment he was sentenced those arguments cannot be made at this stage. This is not the case where conviction can be stayed..Senior Advocate Nirupam Nanavati now makes submissions for the complainant and former BJP leader Purnesh Modi..Nanavati: 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..Nanavati: This petition, filed as it is, is not maintainable under law. Court: Mr Nanavati, this is more so a revision application. Nanavati: 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: Let them clarify under what provision are they approaching. We will have to reply to the plea accordingly. Court: If that is your contention Mr Nanavati, I give you time till Tuesday to file your affidavit. Nothing beyond that. I have to complete these proceedings since sufficient time has been invested in this now..Sr Adv Singhvi seeks to make rejoinder submissions to Nanavati's objections. Singhvi: We are just be accused whether we are fish or fowl. Whether we are duck or drake. The answer to this objection should be... The order under revision is the final order finally rejecting my stay of conviction. Does this order leave anything? Please read laws of finality. I have nothing else to do by way of interlocutory approach in respect of that final order. The order is final. The stay to conviction plea is finally decided it is not as if an interim order is passed. .Singhvi now cites some judgments of the Supreme Court in this regard..Justice Prachchhak points out that the compilation given to him is actually of Singhvi as it has marked relevant portions of the judgments relied upon by him. Singhvi: In Delhi High Court, there is a judge, who asks advocates to mark relevant portions of judgments in different colours, so as to make the task easy. He loves it. Justice Prachchhak: Yes, we will love it too (laughs). .Singhvi: There is no need of reply as such to be filed. Court: 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..Hearing Ends. Court to hear arguments again on Tuesday, May 2. "Whatever you want to file or rely do it on or before Tuesday itself," Justice Prachchhak tells Complainant's counsel.

Rahul Gandhi plea to stay conviction: LIVE UPDATES from Gujarat High Court

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