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Synopsis

Senior Advocate Abhishek Manu Singhvi appearing on behalf of Congress leader Rahul Gandhi seeking stay on conviction in the 2019 criminal defamation case argued on Saturday that if the stay is not granted, it will entail irreversible and irreparable consequences.

Before the bench of Justice Hemant Prachchhak, Sr Adv Singhvi argued that the present matter does not involve a common man but it pertains to a legislator, and if stay on conviction is not granted at the present stage and the conviction is reversed in appeal, it will never be possible by any contrivance of the law or by the judge to restore the losses caused.

Stressing that Rahul Gandhi has been disqualified from the Parliament by virtue of the sentence awarded in the present case, Sr Adv Singhvi put forth a tow fold argument—first, Gandhi's former constituency Wayanad, Kerala remained unrepresented in the Parliament in the latest sessions, and second, as per the circular of Election Commission, re-election on the vacant seat is definitely to follow soon. 

Singhvi said, "There will be re-election. So, if someone else gets elected and later I am acquitted, is there any power on earth that can order the other person to vacate the seat?"

While staitng that in the present matter, there was a clear lack of prima facie case as well as the offence alleged was a low-category offence, Singhvi also questioned the quantum of the sentence awarded to Gandhi.

He said, "I have very rarely found conviction in a criminal defamation case, and if done, the sentence is never more than 3 to 6 months...In this case, the maximum sentence has been imposed for an alleged first-time offence".

Further, Sr Adv Singhvi challenged the locus of the complainant in the present case in initiating the defamation proceedings. He said that Purnesh Modi (the complainant) cannot be considered an aggrieved person in this matter as neither he was individually named in the alleged defamatory speech nor the community he belongs to is a defined community. 

Singhvi highlighted, "There is no documentary evidence to show that a community under the name 'Modi' exists. And the said exhibit is also a mere blank letterhead of a trust created in 2015 namely Modi Samast Gujarat Samaj".

Singhvi pressed for stay on conviction mainly on the following six points:

1. The present case does not pertain to a serious offence. It is nothing in the nature of murder, rape, abduction, etc carrying a sentence of 5 yrs, 6 yrs, or a life sentence.

2. It is also not a case of moral turpitude.

3. The offence alleged does not make a non-societal case.

4. The offence alleged is non-cognizable and bailable.

5. It can only lead to simple imprisonment.

6. The consequences of not granting stay on conviction are drastic.

Apart from these six points, Singhvi raised one more important point that if the conviction is not stayed, Rahul Gandhi will stay debarred from contesting the elections for a period of eight years which can be called a semi-permanent period in politics.

Furthermore, Singhvi vehemently pointed out the alleged errors in the judgments of the magistrate court as well as the sessions court. He underscored that no evidence, either documentary or in terms of the IT Act has been produced before the courts below to justify the proceedings at this stage, even for granting the conviction.

He alleged that the pen drive containing footage of Gandhi's speech, the YouTube video, and the WhatsApp message that the complainant had received were never proven before the court in terms of the applicable laws. 

After completion of the arguments of Singhvi, Public Prosecutor Mitesh Amin argued on behalf of the state and urged before the court that the high court, at the present stage, may not consider exercising its discretion in staying the sentence awarded to Gandhi. 

Senior Advocate Nirupam Nanavati for complainant Purnesh Modi also opposed Gandhi's plea and asked time from the court to file reply. The single judge bench allowed the same.

While posting the matter for further hearing on May 2, 2023, Justice Prachchhak stressed that the proceedings will be concluded on the same day and no further adjournment will be granted. 

Defamation case and Gandhi's conviction:

In 2019, Gandhi in a poll rally at Kolar in Karnataka, said, “how come all thieves have Modi as the common surname”. Thereafter, a defamation case was filed against Gandhi by Bhartiya Janta Party (BJP) MLA and former Gujarat Minister Purnesh Modi, under Sections 499 and 500 of the Indian Penal Code. 

On March 23, 2023, the Congress leader who was then a parliamentarian from Wayanad, Kerala, was convicted by Surat District Court and sentenced to two years in jail. This conviction led to Gandhi's disqualification from his membership in Lok Sabha. 

Appeal and plea for stay on conviction:

Gandhi then filed an appeal before the Sessions Court. Also, the appeal being pending, Gandhi moved an interim application seeking stay on his conviction. Senior Advocate RS Cheema appearing for Gandhi argued that the trial in the matter was not fair and the decision of the magistrate court was strange. He alleged that the judge had made a "hotchpotch" of all the evidence on record.

However, the Sessions Court rejected the Congress leader's plea while noting in the order that "Rahul Gandhi failed to demonstrate that by not staying the conviction and denying an opportunity to contest the election, an irreversible and irrevocable damage will be caused to him".

Gandhi then filed an appeal before the high court against the decision of the Sessions Court.

Case Title:  RAHUL GANDHI v PURNESH ISHWERBHAI MODI