On 23^rd March, 2023, Indian National Congress’s former President Rahul Gandhi was convicted by Surat court, for defamation in relation to his one statement against ‘modi surname’. However, He got bail and his punishment was suspended by the court to give him time to appeal in session court.

Rahul Gandhi appealed against the decision under Section 389(1) of the criminal Procedure code, 1973 and appellate court pronounced the decision on 20^th April. The Court dismissed the application to stay conviction order passed by lower court by saying that,

“It is not disputed fact that the Appellant was the Member of Parliament and President of the second largest political party and looking to such stature of Appellant he should have been more careful with his words, which would have large impact on the mind of people. Any defamatory words coming from the mouth of Appellant are sufficient enough to cause mental agony to aggrieved person.

In this case, by uttering defamatory words viz. comparing persons having surname ‘Modi’ with thieves would definitely have caused mental agony and harm the reputation of complainant, who is socially active and dealing in public.”

[Read here the case analysis of Surat Appellate Court’s Judgement]

Against the decision of the Surat Appellate Court, a revision application was filed by Rahul Gandhi to Gujrat High court under Section 397 read with Section 401 for quashing and setting aside the order of the appellate court and to stay the order passed by lower court.

Background of the Story

• On 13 April, 2019, Congress Leader Rahul Gandhi gave a speech at Kolar Near Bengaluru.

• Against the speech, On 14 April 2019, BJP MLA Purnesh Modi registered a private criminal complaint before the Chief Judicial Magistrate, Surat contending that the speech is punishable as defamation under Section 500 r/w. Section 499 (Provision for offence of defamation) of the Indian Penal Code.

That such comment made by Rahul Gandhi was published in the newspapers of the news agency IANS Karnataka State of Kolar on 14.04.2019.

• In his complaint, he said that in such speech, Rahul Gandhi addressed the Hon’ble Prime Minister as a thief and compared him with economic offenders of India like Nirav Modi, Mehul Choksi, Lalit Modi and Vijay Malya. He asked the people gathered in the meeting as to why all thieves have the surname Modi and the petitioner defamed Hon’ble Prime Minister by saying that in Rafale dealing Hon’ble Prime Minister is 100% thief and not chowkidar.

• On the basis of that complaint, Chief Judicial Magistrate has taken cognizance under Section 190(A) of the Code and recorded the statement of the complainant. But, on 23.02.2022 Magistrate quashed and set aside the said complaint.

• Against the order of CJM, Purnesh Modi filed application before Guj High Court and that Court (Coram: Hon’ble Mr.Justice V. M. Pancholi) vide order dated 07.03.2022 granted interim relief.

• On 16 Fab 2023, Purnesh Modi withdrew petition from stating that sufficient evidence has come on record of the concerned Trial Court.

• Thereafter, Chief Judicial Magistrate, Surat concluded the trial and held the petitioner guilty for the offence punishable under Sections 499 and 500 of the IPC and sentenced him to undergo simple imprisonment of two years.

Case in Gujrat High Court

Lawyers

Contentions of the Counsels

Petitioner’s Side (Rahul Gandhi)-

• The offence registered against the petitioner is neither serious in nature nor moral turpitude, which are the two tests for denying to suspend the conviction and there is no identifiable class at all to maintain a complaint and, therefore, the maintainability of the complaint itself is questionable.

• With regard to offending speech or sentence, there is no evidence in terms of the Evidence Act or the Information Technology Act (for short “the IT Act”) has been produced to justify the proceedings.

• In case of a speech, there is three probabilities that the complainant himself heard the speech or he was present there and second thing is that there may be a reporter attended it and published a story / article, so he/she can state such fact or some other person, who attended the event, can also authenticate the speech; so none of the witnesses was present from the above three categories.

• Petitioner is representing a constituency but due to this conviction he misses the same and his duty towards the people would be ruined. When the petitioner misses the sessions in the parliament, it entails a loss to him of raising his democratic voice in the Parliament and also entails loss to his constituency as their MP’s voice is not being raised.

• The various High Courts have granted suspension of conviction in cases where serious crimes like murder, rape, abduction etc. are committed and that this Court may consider the fact that if the relief is not granted to the petitioner then he will loss eight years of his career.

• When the judgment was pronounced the role of the complainant ends there and what would be possible interest disqualification; he would be content with the conviction and sentence, which fact is between the Court and the person for suspension as there is disqualification, there can be no locus for the complainant for disqualification.

The complainant in the present proceedings on the point that he is not concerned with sentence but with disqualification, which is a political realm and he cannot say that he does not want to see him in the Parliament and thus he is here to oppose the plea for suspension of conviction and sentence.

• Law does not permit such complaint and not a single person comes from 13 Crore people to file a complaint except once named in the speech and as per the law, only aggrieved person can lodge the complaint.

• The complainant himself has stated that in 1988 he got his surname changed from Butwala to Modi and if the petitioner would have said such fact about the caste of Modi then the complaint would have been maintainable, however in the present case, he has named Prime Minister, which even the Sessions Court in its order has noted that the petitioner defamed PM Modi, so law mandates that Prime Minister can file a complaint and not anyone from so-called 13 Crore people.

• On 02.05.2019, when the Magistrate Court issued summons to the petitioner, he had no evidence and there was no prosecutable evidence before the Magistrate Court and the only material was WhatsApp message which sent to Mr Purnesh Modi of a news clipping, but the sender of the message is not known and, therefore, this is a hearsay evidence.

• The case of the petitioner is not a serious offence or cognizable or non-bailable and the offence is not against the society and there is no law and order situation due to the speech of the petitioner.

Respondent’s Side (Purnesh Modi)-

• If the Court has not disqualified a person then the Parliament has disqualified him / her and the complainant has not disqualified the accused so it cannot be said that the accused is suffering an irreversible loss and, therefore, the seriousness of the offence need not be considered at this stage.

• If the law bars an individual from being member of Parliament, on his conviction, then it cannot argue against him.

• The powers under Section 389 of the Cr.P.C. have to be exercised in rarest of rare cases and even after the conviction of the petitioner, he has not stopped from making such comments.

While referring the newspaper report, learned senior counsel has submitted that in the newspaper / article, it is stated by the accused that his name is Gandhi and he is not Savarkar and would not apologies for the same and in the said article, it is also stated that the BJP has given him the best gift ever, so why he is scared now and kept this gift with him.

• Petitioner would not be scared or affected because of disqualification or jail term, so this was his public stand, but in courtroom, he has changed his stand.

• At least two to three cases have been filed against the petitioner for his utterances against Veer Savarkar in Cambridge and these cases are filed after the Surat case and his comments on Savarkar etc. shows his conduct is irreparable.

• Petitioner is a leader of national level political party and when he just be a motormouth wherein he will keep abusing and defaming the opposite side in politics, then he will have to learn a lesson as no one will tolerate his comments and he did not apologies even before the trial was commenced.

• Complaint is filed for the defamation of persons having “Modi” surname and Persons belonging to “Modi Community”. Undisputedly, Respondent is having “Modi” Surname and also belonging to “Modi Community”. Now, “Modi” surname holder and member of “Modi Community” are certainly identifiable/ suable class/ well defined class.

• Eye witness Ganesh Yaji very categorically depose that he himself physically present when the accused delivered the defamatory speech in Kollar on 13.4.2019 and this witness heard that defamatory imputation. Further, CD is shown to this witness in laptop during the trial, wherein he confirms the subject imputation and defamatory speech.

Petitioner Side also filed a joinder, in which it said,

• The findings recorded by the Trial Court in the order are speculative and hypothetical, which suggests that the comments “might have been harmed the sentiments of complainant”.

• As far as the magical witness Mr. Yaji is concerned, he is a BJP member from 40 plus

years and he is obviously a opponent and thus his testimony cannot be the sole evidence to convict the petitioner and he can be a witness, but the same must be corroborated with other evidence on record and except this, there is no other evidence available at all.

• The electronic evidence that too is also not proved and the evidence in the form of the CD was in an open condition, which is a breach of IT Act.

Public Prosecutor-

• Public Prosecutor for State of Gujarat submitted that the proceedings under Section 389 of the Cr.P.C. empowers a Public Prosecutor to make submissions and there is a statutory right of audience in the present case since it is under Section 398 of the Cr.P.C.

• This Court has to look into the seriousness of the case and admittedly, both Magistrate and Sessions Court have already considered the seriousness of the case.

Court’s Stand

After hearing the submissions of both sides, the Learned High Court Judge decided the case as follows-

On ‘Not a serious Offence and moral turpitude’

• So far as the argument on the aspect of ‘not a serious offence or moral turpitude’ is concerned, the Hon’ble Apex Court has held in the case of Syam Narayan v. State of Uttar Pradesh (2014) 8 SCC 909 in the context of Section 389(1) of the Cr.P.C. that giving hearing to the learned Public Prosecutor is also an indication as to the seriousness of such offence.
• 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. It appears that the accused suggested the name of the Hon’ble Prime Minister to add sensation, apparently and for an intention to affect the result of the election of the candidate of concerned constituency belonging to the political party of the Hon’ble Prime Minister and then the accused did not stop there but imputed that “saare choro ke naam modi hi kyu hai”.

Thus, the present case would certainly falls within the category of seriousness of the offence.

• Further, the said act would amount to an offence punishable under Section 171G of the IPC [false statement in connection with election] also and thus, the offence punishable under Section 499 of the IPC is committed with an intention to make a false statement in connection with election, which is an offence punishable under Section 171G of the IPC.

• It appears that 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.

• The revisioner has breached the modesty, even if his version is accepted and further revisioner owes a duty to each individual and the society in general not to influence the election on the basis of false fact. Thus, under the facts and circumstances of the case, the offence committed by the accused falls in the category of moral turpitude also.

On ‘Modi class’-

• The persons having “Modi” surname in particular caste makes it clear that the complaint is filed for defamation of persons having “Modi” surname and the persons belonging to “Modi Community”. Undisputedly, respondent is having “Modi” surname and also belonging 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. Like persons are having “Patel” Community as well as surname, “Jain” Community as well as surname, “Modi” is also a community and surname both.

On ‘Lack of Evidence’-

• Complaint is filed on the basis of the oral evidence of the witnesses, documentary evidence and electronic evidence. It appears that the eye witness Ganesh Yaji has categorically deposed that he himself physically present in the election speech which was delivered by the accused and he heard it including the defamatory imputation.

• Further, to corroborate the oral evidence, CD is shown in laptop during the trial to said witness wherein he confirmed the impugned speech / imputation.

On ‘irreparable, irreversible situation and extraordinary circumstances’-

• Criminal antecedents of the accused will be a relevant consideration while staying conviction, even in the case of suspension of sentence as per the decision of the Hon’ble Supreme Court in the case of Kanaka Rekha Naik Vs. Manoj Kumar Pradhan and another (2011).

• The Court should not be impressed by the fact that the accused being sitting MLA/ MP even in staying the sentence.

• A public servant losing his job is not a consideration/ ground to exercise the discretion u/s. 389(1) of the Cr.P.C. (K.C. Sareen Vs CBI, Chandigarh [2001(6) SCC 584])

• A right to be elected is neither a fundamental right nor common law right, but at the best it is pure and simple statutory right.

Court’s Conclusion

After considering the case, the court concluded as follows-

• Considering the facts and circumstances of the present case and the evidence on record, it appears that the Trial Court has not committed any error of facts and law in passing the impugned order of conviction against the accused for the alleged offences.

• It has been consistent held that the power to suspend the sentence sought to be exercised in limited circumstances weighing various factors.

• It is crucial to note that the maximum punishment in any offence is not the only indicator of the seriousness of the offence. There may be other factors, having a larger impact on the society as a whole and the enormity of the issue at hand.

• In the instant case, the conviction is under Section 499 of the IPC for the offence of defamation not just against one person but a large segment of the society – an identifiable class.

The offence of Section 499 is to be examined not merely in the context of the maximum punishment it entails but also in the facts and circumstances and the persons against whom it has been made and by whom it has been made, for the purpose of exercising the power under Section 389 of the Code.

• The offence of Section 499 can certainly be considered to be a serious offence of having a large public character thereby affecting the society at large in a given case wherein a large number of persons of the society have been defamed.

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.

• In the present case, in order to gauge the seriousness of the offence, another factor which compounds the case against the petitioner is that the defamation alleged was of a large identifiable class and not just an individual. Due to the said fact, the conviction partakes the character of an offence affecting a large section of the public and by definition, the society at large and not just a case of an individual centric defamation case.

• Further, the fact that the petitioner is a senior leader of the oldest political party in India with a large presence and a prominent figure in the realm of the Indian political landscape, also ensures that every utterance of the petitioner automatically gets large scale publicity.

• In the modern electronic media environment, this large scale publicity is lightning quick, difficult to contain and leaves a permanent imprint in the form of website links, videos, etc. The petitioner is assumed to be aware of the same and being a public personality is vested with the duty to exercise this vast power at his disposal with caution ensuring that dignity and reputation of a large number of persons or any identifiable class is not jeopardised due to his political activities or utterances.

• Moreover, as many as ten criminal cases are pending against the applicant. It is now need of the hour to have purity in politics. Representatives of people should be man of clear antecedent. It also appears from the record that after filing of the said complaint, another complaints came to be filed against the present accused, out of which, one complaint was filed by the grandson of Vir Sawarkar in concerned Court of Puna when the accused used defamation utterances against Vir Sawarkar at Cambridge and another complaint was also filed in concerned Court of Lucknow.

• In the backdrop of the said circumstances, refusal to stay the conviction would not, in any way, result in injustice to the applicant.

• In view of the foregoing discussions, in my considered opinion, there is no reasonable ground to stay the conviction of the applicant in the facts and circumstances of the case. The impugned order passed by the appellate court is just, proper and legal and do not call for any interference.

Reference

Rahul Gandhi v. Purnesh Ishwarbhai Modi, Guj HC (2023)

The article is authored by Advocate A.H.Gangohi.