Before a Surat magistrate court held Rahul Gandhi guilty of defamation over a remark made in a 2019 election speech, and sentenced him to two years, the case had seen a sudden halt in March 2022.
Just two days before a verdict was to be given by the Surat court, the petitioner in the case, Surat BJP MLA Purnesh Modi, had sought recording of a further statement from Rahul in the same court, which was rejected. Twelve days later, he moved the High Court, appealing against the Surat court’s rejection of his request and the stay came the same day as his appeal. Thereafter, the case remained pending at the HC for nearly a year, by which time a new chief judicial magistrate took over in a Surat court.
Modi had then withdrawn his appeal in the HC and gone back to the Surat court, where the conviction came last week.
On April 13, 2019, Rahul Gandhi makes a speech in Kolar, Karnataka, while campaigning for the coming Lok Sabha elections, where he asks “how is it that all thieves have the Modi surname”. He goes on to name Lalit Modi, Nirav Modi and Narendra Modi.
The next day, Purnesh Modi files a complaint before the Surat magistrate’s court, accusing Rahul of defamation.
The case is first heard by Chief Judicial Magistrate (CJM) B H Kapadia, on June 7, 2019. Rahul is issued summons to appear before the court. In October, he appears before the court and pleads “not guilty” in the case.
On June 15, 2020, CJM A N Dave takes charge of the case, and begins recording testimony of witnesses.
CJM Dave examines two witnesses from Purnesh Modi’s side — D Shambhubhai Bhat, the joint chief electoral officer of Bengaluru during the 2019 Lok Sabha elections; and BJP worker P M Raghunath, who originally received the CD containing Rahul’s speech from the election officer.
Modi files an application before the CJM court seeking to bring four more witnesses – a member of the video surveillance team attached to the Kolar district election office, Shivaswamy M; its videographer Arunkumar K R; TV9 special correspondent, Karnataka, Rajendra Simha; and Karnataka BJP leader Ganesh Yaji. Modi says their testimony is “essential to be examined to prove the contents of the electronic records (a pen drive and three CDs) as per the Evidence Act”.
Last week, Raghunath was re-elected as working president of the south central zone of the New Delhi-headquartered Akhil Bhartiya Tailik Sahu Mahasabha. He told The Indian Express that he was “an RSS swayamsevak and a BJP office-bearer and a prime witness” in the case against Rahul. He also says the letter seeking records of Rahul’s speech from the election office was sent through Yaji.
“I took the certified CDs, and my son couriered them to Purnesh, who then gave them to the Surat court,” Raghunath says.
In the Surat court, CJM Dave refuses Purnesh Modi’s application to bring new witnesses, observing that it appeared to be on the same grounds as the earlier application, “to prove the same facts… since certain questions with respect to proof of electronic records were put by the defence counsel” to earlier witnesses.
The CJM holds that “the complainant has examined an adequate number of witnesses to prove his case” and that since the new application was for proof of “the same facts”, it is not necessary to examine the new witnesses.
Modi appeals before the CJM seeking a stay on his order. Without giving a stay, the court adjourns the matter to January 16, 2021.
On January 12, 2021, Purnesh Modi moves the Gujarat High Court challenging CJM Dave’s rejection of his application to examine four additional witnesses. The court of Justice B N Karia issues a notice to the state of Gujarat and Rahul on January 16, 2021, returnable on March 16, 2021.
Meanwhile, cross-examination of witnesses and recording of evidence in the Surat court continues.
Then, on July 9, 2021, the Gujarat HC directs the trial court to “not proceed further” till Modi’s application before it is decided.
On August 17, 2021, the court of Justice Ilesh Vora quashes the Surat court CJM’s order of January 5, 2021, and holds that “the persons named in the application (the four witnesses) are essential to be examined for a just decision of the case”. The HC also sends back Modi’s plea for summoning and examining of additional witnesses to the trial court.
In his order, Justice Vora says the dismissal of Modi’s application by the trial court was “not in consonance with the object and scope as prescribed under Section 311 of the CrPC (dealing with examination of witnesses) and dictum of law settled by the Apex Court”. The HC says the electronic evidence is required to be proved as it is the magistrate’s court “who directed the complainant to prove the admissibility of electronic record following mandatory provisions like Section 65 B of the Evidence Act”.
The HC adds that deposition of Shambhubhai Bhat (the joint chief electoral officer, Bengaluru) showed that the Kolar Election Office prepared three CDs. “Under the circumstances, the witness from the Kolar Election Office seems to be essential to prove the contents of the electronic record.” The court observes that while there are no “hard and fast rules” for exercising discretion under Section 311 of the CrPC “as it depends on the facts of each case”, but “the court has to apply its judicial mind while exercising its discretion keeping in mind the concept of fair trial”.
He adds that “fair trial includes grant of fair and proper opportunities to the person concerned”.
Rahul’s lawyer Pankaj Champaneri argues against the maintainability of Modi’s petition, submitting that the magistrate’s order suffered from no jurisdictional illegality or impropriety. Champaneri says Purnesh Modi filed the petition before the HC as “an afterthought”. He argues that Modi never applied for certified copies of electronic records, and calls his appeal before the HC an attempt to “abuse the process of law and Court… to fill up the lacuna remained in the case”.
With Purnesh Modi’s petition remitted back to it, on October 29, 2021, CJM Dave partially accepts his request. The Surat court summons two of the witnesses listed by him — Karnataka state BJP office secretary Yaji, and Shivaswamy M, one of the members of the video surveillance team working with the election authorities.
Yaji says he was assigned additional duties during the 2019 elections by the BJP, including attending rallies of leaders of the party and other parties, noting down who said what, and preparing a report to be sent to the central BJP office. Yaji submits in his testimony that he attended Rahul’s April 13, 2019, at Kolar in this context.
CJM Dave sets the verdict date for February 25, 2022. Two days before that, Purnesh Modi moves an application before the court, seeking that Rahul explain the contents of the electronic records related to his speech as per provisions of the CrPC Section 313, and that this be recorded as a further statement by the Congress leader. Dave rejects the same.
The same day, Modi also moves an application before the court to adjourn the matter so that he can approach the HC. This too is rejected.
On March 7, 2022, Purnesh Modi again moves the Gujarat HC, this time challenging the CJM’s order of February 23, rejecting his application for further statement by Rahul under CrPC Section 313. Modi also submits that the magistrate is not granting him any adjournment and requests the HC for a stay on the trial.
The petition is filed, registered and presented before the HC for hearing all on the same day. Justice Vipul Pancholi grants a stay on the trial, issuing a notice.
On May 19, 2022, CJM Dave is replaced with CJM H H Varma in the Surat trial court.
The matter remains pending in the HC till February 16 this year, when Purnesh Modi himself withdraws his petition. The HC then vacates the stay.
Harshit Tolia, Modi’s advocate in the HC, says they withdrew the petition “because we realised sufficient evidence had been brought on record” and as “a law-abiding citizen, we felt it was our duty to comply with the Supreme Court order” on conducting expeditious trials of cases involving MPs/MLAs.
The Surat trial court of CJM Varma then puts up the case for final arguments from February 21, and concludes these on March 17.
On March 23, CJM Varma orders Rahul’s conviction. Rahul is present in court.
Questioning the order, Rahul’s lawyer Kirit Panwala says: “There is no mention in the judgment whether the electronic evidence was proved or not. The court has not given a clear finding as to whether it believes the electronic evidence or not. The court has merely written that apart from electronic evidence, there is other evidence that can be considered. Nor was there any definite order from the magistrate court on whether the electronic evidence has been admitted or not. This is one of the grounds on which we will be challenging the verdict.”