29 April 2023 11:30 AM GMT
Appearing before the Gujarat High Court for Congress leader and disqualified MP Rahul Gandhi in his criminal revision plea filed seeking a stay on his conviction in the 'Modi-Thieves' remark case, Senior Advocate Abhishek Manu Singhvi today argued that non-stay on conviction will have irreversible consequences for Gandhi and that he would stand disqualified for a period of 8 years that can...
Appearing before the Gujarat High Court for Congress leader and disqualified MP Rahul Gandhi in his criminal revision plea filed seeking a stay on his conviction in the 'Modi-Thieves' remark case, Senior Advocate Abhishek Manu Singhvi today argued that non-stay on conviction will have irreversible consequences for Gandhi and that he would stand disqualified for a period of 8 years that can be said to be virtually semi-permanent period.
Senior Advocate Sighvi strongly argued before the bench of Justice Hemant M. Prachchhak that the alleged offence did not involve the element of moral turpitude, it was a non-cognizable, bailable and non-serious offence and therefore, the conviction should be suspended. He also argued that in many cases concerning much more serious offences, the Courts have stayed the conviction.
Importantly, he also argued as to how Gandhi's disqualification and non-stay on his conviction in the defamation case would affect not just his prospects as a parliamentarian, but even the interests of the people of the constituency, he is representing, would be adversely affected.
"My missing sessions in the parliament entails a consequence that I am unable to raise my voice, the people of the constituency lose their rights to get their voices raised in the parliament. It is also determinantal to the public interest of the country that the Parliament is missing one of the many voices," he argued.
He also submitted that moving ahead, if Gandhi's appeal is allowed after 5-6 months, how will my losses be restored?
"It will be an irreversible loss. Suppose, meanwhile if the Election Commission notifies by-election and someone else gets elected, later on, if I win the appeal, the situation is irreversible. I could not contest the by-election, but that doesn't mean I lost the election, but the person elected can't be unseated. Even Election Petitions won't help me," he contended.
However, during the course of the hearing, the bench of Justice Prachchhak did observe that Gandhi has more duty towards the people at large as he is representing the people at large and hence, his statements must be within limits and bounds
It may be noted that Gandhi has moved the High Court challenging the Surat Sessions Court April 20th order dismissing his application seeking a stay on his conviction. It may be recalled that on March 23, the Court of Chief Judicial Magistrate sentenced Gandhi to two years in jail over his remark “why all thieves share the Modi surname” made during a political campaign in Karol in April 2019, following which he was disqualified as MP of Lok Sabha.
The matter before the High Court assumes significance as if the petition of Gandhi is allowed, it could pave the way for Gandhi's reinstatement as a Member of Parliament, subject to a notification issued in this regard by the Loksabha secretariat.
"No identifiable class of Modi community"
Appearing before the bench of Justice Hemant M. Prachchhak, Senior Advocate Singhvi, at the outset, argued that the complaint, filed by BJP MLA Purnesh Modi was itself not maintainable as it did not refer to an identifiable class of people having the Modi surname. He added that none of the three people named in the statement (Nirav Modi, Mehul Choksi and Vijay Mallya) had moved any complaint against Gandhi.
He argued that anyone from a non-identifiable class can not come to the Court and file a complaint for an allegedly defamatory statement purportedly directed towards a community.
"The complainant says in his complaint that I am filing the complaint because I belong to the Modi community and it says that in Gandhi's utterances, 13 crore people of the community are hurt...If I say that XYZ community is bad, anyone belonging to that community can't come and file the case against me, it is the law...Anyone from the so-called community of 13 crore people can not come and file a complaint against me, except the ones who were named by me in the speech. In fact, I did not name Complainant (Purnesh Modi)," Senior Advocate Singhvi argued before the High Court.
In this regard, Senior Advocate Singhvi also referred to several Supreme Court rulings which stress the need to have an identifiable class of citizens to hold a defamation complaint as maintanble. He relied upon Narottamdas L. Shah vs Patel Maganbhai Revabhai And Anr. and Subramanian Swamy vs Union Of India, Min. Of Law wherein it was held that In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint in that regard is not maintainable.
Senior Advocate Singhvi also submitted before the Court that during his deposition before the Trial Court, the Complainant Purnes Modi had admitted that the Modi surname doesn't mean that it belongs to a certain community.
"Prime Minister is not involved in the case, he has not filed the case. He is certainly an identifiable class...The complainant says that the Accused (Rahul Gandhi) didn't take his name. If everyone from the unidentifiable community is allowed to file a case then 499 IPC and 199 CrPC will have no meaning," he argued.
Importantly, he also informed the Court that the complainant had formed a trust related to the Modi community in 2015 named 'Modi Samast Gujarat Samaj' and in his deposition before the Court, he said that he is not having any material else other than the letterhead of that trust (which he himself created) to shore that there exists a modi community, which has an identifiable class of people.
Senior Counsel Sighvi argued that the alleged offence is a non-serious one and it is not that Gandhi has murdered someone or has assaulted anyone. He further submitted that the Sessions court, which rejected his plea for a stay on conviction, relied upon many such cases which actually operate in favour of Gandhi.
Senior Advocate Singhvi submitted that the Court relied on the Navjot Singh Sidhu case, but in that case, Sidhu was convicted under 302 IPC and his conviction was suspended and by relying on that case, Gandhi's appeal could not have been rejected.
"In far more serious cases, conviction was stayed, if the argument of the complainant is accepted that conviction can't be stayed, Section 389 CrPC will move to a vanishing point...Rarely have I seen in my criminal practice, a conviction in a criminal defamation case, and if it has happened, the sentence is for 3 months or 6 months. This situation cries for redressal," Senior Counsel Singhvi argued.
He further contended that the court had been harsh in imposing the maximum punishment (2 years) prescribed for a Defamation case on Gandhi even when he is a first-time offender and the consequence would be that he would entail a loss of 8-year of his career.
"Serious ex-facie vitiating factors involved"
Senior Counsel Singhvi argued that many serious ex-facie vitiating factors were involved in the case which led to the trial court convicting Gandhi in the defamation case and the same raised grave apprehension about the process of trial.
Importantly, he submitted that the Surat Magistrate Court, while convicting Gandhi in the case, stated that he has basing his case on the ground that Gandhi was admonished by the Supreme Court in the Rafale case and he was asked to be more careful and since he was warned there, his error in this case was grave.
However, Senior Counsel Singhvi submitted that the said order in Rafale Case came on November 14, 2019, and the alleged speech in the instant case was made in April 2019 and hence, in a way, the Court asked Gandhi to be careful retrospectively.
"Supreme Court order (Rafale case) was delivered on 14-11-2019 and the alleged statement was made on 13-4-2019. How can I be asked to be careful retrospectively? It was an apparent error on the part of the Court asking Gandhi to be retrospectively careful...Supreme Court's order in the Rafale case was the basis of the order, but the same was not put to the Accused (Gandhi) and I (Gandhi) was not confronted with the same. This rafale case contention was raised before the Sessions Court but its order did not say anything about it.," he further submitted.
Further, Senior Counsel Singhvi also added that while issuing the summons, the Court had no prosecutable materials before him and that the Court did not even hold an inquiry as mandated under Section 202 of CrPC. He added that the Magistrate only relied upon only a WhatsApp message, allegedly sent Complainant (Purnesh Modi) containing a news clipping and even the sender of the message was not known.
It was also informed to the Court that the complainant did not say that he was in the audience when the statement was made by Gandhi and he only said he received a WhatsApp message of the impugned statement of Gandhi. In fact, he added, the pen drive containing the alleged speech, was submitted much later on when the trial had already begun.
"Pendrive, Youtube materials were produced later on, but on the day of issuance of summons, what was the material before the Court? NothingThe alleged statement (of Gandhi) was not proved at all. Two 313 CrPC statements were recorded (in 2021), and when the complainant realised he had not produced the material/speech he files an application in 2022 February that please reopen the pendrive, youtube speech. The trial court rejected the same saying that 313 Statements are recorded, ship has sailed. In March 2022 he sought a stay on trial, and till February 2023, he was happy with the stay on the case. Meanwhile, no new evidence and no material were submitted. Again in February 2023, he seeks a vacation stay. n March 2022, due to his behaviour in the court that he doesn't wish to argue case, the Court closed his evidence. Thereafter, he moved the HC, seeking a stay on trial proceedings. He himself sought a stay on its own complaint, and after almost 1 year, in February 2023, he seeks vacation of the order of the Stay saying that new facts and sufficient material have come on record. But nothing had changed meanwhile. No new facts, no material, nothing," Senior Counsel Singhvi Argued.
He further doubted the credibility of the witness (Yaji) who was examined from the side of the complainant, though much later in 2022. Senior Counsel Singhvi said that this witness was not there in the complaint, not in the witness list, and he appeared only in early 2021.
"He is a member of the BJP and a close associate of the Complainant. Yaji brings the CD (containing the alleged speech) claiming that he got it through the Election Commission. He says in his deposition that he received the CD from the Election Commission of India lying in open condition and I am not sure from where the ECI got the CD," he submitted.
Moving ahead, he submitted that that complaint had no business in taking interest in the disqualification of Gandhi pursuant to his conviction in the case. He said that if the complainant was aggrieved with the alleged statement, he should have been satisfied after the Court convicted and sentences Gandhi to 2 years in jail.
However, he added that the complainant did not challenge the stay on his sentence and rather, he opposed my plea for a stay on conviction.
"In criminal matters, a complainant has to be aggrieved for redressal. After the conviction, at the most, he can say that he must be punished. But in this case, under his nose, my sentence was stayed, and he did not challenge the same but he goes on to challenge my appeal for a stay on conviction before the Sessions Court. What was the complainant's concern with my disqualification? Under 499 IPC, you (Complainant) must be the aggrieved person, which is not the case. Defamation cases are bilateral cases, defamation cases are intended to operate in-personam. You (Purnesh Modi) are a complainant, what is your concern with my (Rahul Gandi) disqualification? You are concerned with the sentence but why are you interested in my disqualification"
After Senior Counsel Singhvi concluded his arguments, Senior Counsel Nirupam Nanvaty, arguing for Complainant-Purnesh Modi challenged the maintainability of the revision plea as it was not whether Gandhi had moved the revision plea or a Section 482 CrPC plea.
To this, the bench remarked that it was a revision plea, however, when Senior Counsel Nirupam Nanvaty insisted on objecting to the same, the bench granted him time till Tuesday (May 2) to file a reply in this matter and indicated that the bench would decide the matter on May 2 itself.