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Synopsis

While refusing to stay the conviction of Rahul Gandhi in the Modi surname remark case by virtue of which the Congress leader was disqualified from Parliament, the Gujarat High Court on Friday held that the offence committed by Gandhi was a "serious offence" and fell within the category of "moral turpitude" also. 

The bench of Justice Hemant Prachchhak observed so while refuting the argument raised by the Congress leader's counsel to challenge the conviction and imposition of maximum punishment on Gandhi in the present case. 

During the course of hearing in the case, Senior Advocate Abhishek Manu Singhvi who appeared for Gandhi had contended that the offence registered against Gandhi was neither serious in nature nor moral turpitude, which were the two tests for denying to suspend the conviction.

Moreover, he had questioned the maintainability of the complaint as well. His argument was that the complainant in this matter had no locus to file the compaint as Gandhi's statement in question was not intended towards him rather, it mentioned the term 'Modi' which is a community of approx 13 Crore people and not anyone among that crowd can come and file a defamation case. 

However, Justice Prachchhak opined that the trial court had considered all these aspect while convicting the Congress leader. "The learned Trial Court specifically gave findings of gravity, i.e. 'seriousness of the offence'. That the accused was (i) member of parliament (ii) president of second largest national level political party and (iii) president of the party ruled in country for more than 50 years, who was giving a public speech to the thousands of people and made a false statement in the election with clear intention to affect the result of the election," noted the judge. 

Justice Prachchhak said the trial court noted that not only this, but it appeared that Gandhi also used Prime Minister Modi's name to add sensation with an intention to affect the result of the elections when he stated “saare choro ke naam modi hi kyu hai?” (Why is name of all thieves Modi?)

Moreover, Justice Prachchhak did not agree with the defence of fair comment as was being taken by Gandhi's counsel. "...the accused is a Member of Parliament possessing high position in the society and having bounden duty not to scandalize any person from the society and the defence of fair comment is neither proved nor believed by the Courts below," he observed. 

Further, on the question of 'Modi' being a non-identifiable class, Justice Prachchhak noted that in the present matter, the complaint had been filed for defamation of persons having “Modi” surname and the complainant had “Modi” surname and belonged to “Modi Community”.

"Now, 'Modi' surname holder and member of 'Modi Community' are certainly identifiable / well defined class. Further, 'Modi' people are a fraction of Ganchi / Taili / Modhvanik Ghnyati, as per the evidence and thus, again a well-defined identifiable / suable class," held the judge. 

Therefore, while highlighting that this aspect had already been considered by the courts below, Justice Prachchhak held that "the limited ground of 'correctness', 'legality' or 'proprietary of any finding' under Section 397(1) of CrPC was not available with Gandhi under a revision plea".

On the point of Gandhi's intention while making the statement in question, Justice Prachchhak held that "not only intention or knowledge but 'reason to believe' is an additional factor to bring the imputer to prosecute". He emphaised that in the present case, all the three ingredients, i.e. intention, knowledge and reason to believe had been interchangeably satisfied.

Furthermore, on Dr Singhvi's submission that if Gandhi's conviction does not get stayed, it will cause an irreparable, irreversible situation and extraordinary circumstances, Justice Prachchhak held that the law with regard to suspension of conviction is very clear that it should be in rare and exceptional circumstance and it will depend on “seriousness of offence”, "criminal antecedents of the accused", and "accused's position in public" etc.  "A public servant losing his job is not a consideration/ ground to exercise the discretion u/s. 389(1) of the CrPC," the judge pointed out. 

In addition to that, Justice Prachchhak observed that in the instant case, the conviction was under Section 499 of the IPC for the offence of defamation not just against one person but a large segment of society – an identifiable class.

"The offence of defamation is not to be ignored as a mere trivial offence as has been sought to be suggested by the petitioner rather it must be examined from the point of view of mischief that the provision seeks to control and also from the point of view of the alleged defamation being of an individual or a larger class," underscored the judge. 

In view of the above factors among others, Justice Prachchhak held that Gandhi was trying to seek stay of his conviction on absolutely non-existent grounds.

He also highlighted that as many as ten criminal cases are pending against Gandhi. After filing of the complaint in the present matter, another was filed against him for defaming Veer Savarkar at Pune and Lucknow, he pointed out. 

"It is now need of the hour to have purity in politics. Representatives of people should be man of clear antecedent," said Justice Prachchhak while opining that refusal to stay the conviction in the present matter would not, in any way, result in injustice to Gandhi. 

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