‘He should have been more careful with his words’: What Surat court said while dismissing Rahul Gandhi’s appeal

Referring to the trial court’s verdict, the court said that “it transpires that the appellant had made certain derogatory remarks against the Hon’ble Prime Minister Shri Narendra Modi in general public and further compared the persons having Modi surname with thieves and the complainant is also having surname of Modi”.

Saying that Purnesh Modi was an ex-minister involved in public life, the court said that “such defamatory remarks would have certainly harmed his reputation and caused him pain and agony in society”. “For such reasons, I do not agree with the objections raised by Mr Cheema, lead senior advocate, with regard to maintainability of the complaint,” the court said. Supreme Court lawyer Ranjeet Cheema had represented Gandhi in the sessions court on April 13, when the case was last heard.

The court further held that there cannot be defamation against a community as such. “Community as such may not have a reputation, but the reputation will only be of individual members. When the defamatory matter affects each and every member of an ascertainable class or group each of them or all of them could set the law in motion,” the court said.

Gandhi was convicted on March 23 by the court of Chief Judicial Magistrate (CJM) H H Varma and sentenced to two years simple imprisonment, which is the maximum punishment for criminal defamation, with regards to the ‘Modi surname’ remarks he made at an election rally on April 13, 2019, in Kolar, Karnataka. Gandhi was immediately suspended from Parliament after his conviction. The CJM court had suspended the sentence for 30 days to allow him to appeal in a higher court.

The court was of the opinion that Gandhi had “not made out any case to suspend the conviction recorded against him” and stated that the Supreme Court had, in a number of pronouncements, held that the powers accorded under Section 389 (1) of CrPC to suspend/stay the conviction “is required to be exercised with caution and circumspection and if such power is exercised in a casual and mechanical manner, the same would have serious impact on the public perception on the justice delivery systems and such order will shake public confidence in judiciary”.

The order, made public on Thursday, said: “I hold that the ld. counsel for the appellant has failed in demonstrating that by not staying the conviction and denying an opportunity to contest the election on account of disqualification u/s. 8(3) of the Representation of the People Act, 1951 an irreversible and irrevocable damage is likely to be caused to the appellant (Gandhi)”.

On handing out the maximum sentence to Gandhi, the court said, “…it would be worthwhile to observe that the appellant was not an ordinary person and was sitting MP, connected with public life. Any word spoken by appellant would have large impact in mind of common public. The alleged speech given by appellant on 13/4/2019 was during election campaign. Moreover, high standard of morality is expected from a person like appellant and the Ld. trial court had inflicted sentence, which was permissible in law. Further, it appears from record that all opportunities were accorded to appellant for cross-examining the witnesses and hence I do not agree with the contentions of Ld. senior advocate Mr. Cheema about appellant being deprived of fair trial”.

The court cited submissions by BJP MLA Modi’s counsel Harshit Tolia that “the appellant has miserably failed to show that the judgment of ld. trial court is so perverse due to which, exceptional case is made out in his favour”.

The court also cited Tolia’s submission that “the appellant won with record margin 4,31,770 votes from Wayanad constituency, however, the appellant had also lost his seat from Amethi constituency. Therefore, winning with record margin votes would not create any special circumstance in favour of appellant”.

According to the court, looking at the stature of the appellant, that he was an MP and president of the second largest political party, “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”.

Citing the Gujarat High Court observations in the case regarding BJP Lok Sabha MP Naranbhai Bhikhabhai Kachhadia’s conviction which was cited by Tolia, the court observed “removal or disqualification as Member of Parliament cannot be termed as irreversible or irreparable loss or damage to the appellant”.

Tolia told mediapersons, “The convict had failed to establish (his case as) the rarest of rare for exceptional circumstances. The court had also taken into consideration the Supreme Court judgments and Gujarat High Court order put forward by us before the courts. When it comes to MLA or MP they should be careful, and they cannot claim any exceptional circumstances mainly on the basis of them being MLA or MP. They should be treated at par with all citizens of India. Right to be elected is not constitutional but is the legal right under the Representation of the People Act, which is taken into consideration by the court. The court had also noted the conduct of the accused, his status and several other aspects, before giving order.”

Modi, who arrived at the court complex after the proceedings, said, “The court has rejected the appeal of Rahul Gandhi. At present we cannot say anything, we have to go through the order. We are happy with the court’s order.”

Kirit Panwala, who represented Gandhi, said, “We will go through the order first and later decide our future course of action. We will definitely avail the right of going to Gujarat High Court in coming days.”

Talking to The Indian Express, defense lawyer Kirit Panwala said, “The additional sessions Judge R P Mogera has now fixed the final disposal of the appeal on 20th May 2023. Later appeal will be finally heard to decide as to whether the judgement and order of the lower court is correct or not. If the order comes against Rahul Gandhi, then he may have to go to jail and bail can be secured only from the high court.”