By Adv. R. S. Agrawal 

 

IN THE order passed by the Gujarat High Court Judge, Justice Hemant M Prachchhak in the case –Rahul Gandhi v. Purnesh Ishwerbhai Modi, on July 7, 2023, the Court has pointed out that one of the factors compounding the offence of defamation against the petitioner Rahul Gandhi, who approached the Court for staying his conviction, was defamation of a large identifiable class and not just an individual. According to the HC, due to this 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 large number of persons or any identifiable class is not jeopardised due to his political activities or utterances. In this case, these additional countervailing factors also operate against the petitioner, which increase the seriousness of offence in the present facts and circumstances: Defamation is an offence of public character wherein the fundamental right to reputation and dignity is involved; The conviction of the petitioner involves the impairment of the cherished fundamental right to dignity and reputation of a large segment of the population; The public standing of the petitioner and the fact that any utterance of the petitioner attracts large scale publication, gravely impairs and damages the reputation of the complainant and the identifiable class in question. Therefore, the mere fact that the maximum punishment is of two years, would not come to the aid of the petitioner in order to convince the Court to disregard the seriousness of the present offence. His conviction is a serious matter, affecting a large segment of the society and needs to be viewed by this Court with the gravity and significance it commands. In fact, the applicant is trying to seek stay of his conviction on absolutely non-existent grounds.

 

It is well-settled principle of law that stay of conviction is not a rule but an exception to be resorted to in rare cases. Disqualification is not limited only to MPs/MLAs. Moreover, as many as 10 criminal cases are pending against the applicant. It is now the need of the hour to have purity in politics. Representatives of people should be men of clear antecedent. It also appears from the record that after filing of the said complaint, other complaints came to be filed against this accused, out of which, one complaint was filed by the grandson of Vir Sawarkar in concerned Court of Pune, when the accused used defamatory utterances against Vir Sawarkar at Cambridge and another complaint was also filed in concerned Court of Lucknow. Against the backdrop of these circumstances, refusal to stay the conviction would not, in any way, result in injustice to the applicant. The application was filed seeking quashing and setting aside of the impugned order passed by the 8th Addl. Sessions Judge, Surat, on April 20, 2023 and also for getting stayed the order of conviction against the accused passed by the Chief Judicial Magistrate (CJM), Surat, on March 23, 2023, in the defamation case. It has been alleged in the complaint that the petitioner had delivered a speech at Kolar, near Bengaluru in Karnataka for which this private criminal complaint case came to be filed in the CJM’s Court contending that the speech is punishable as defamation under section 500 read with section 499 of the IPC and on the basis of the said complaint, the CJM took cognisance of the complaint under section 190(A) of the CrPC and recorded the statement of the complainant.

 

It has been further alleged that in such speech, the petitioner 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. It has been also alleged that the complainant asked the people gathered in the meeting as to why all thieves have surname Modi and the petitioner defamed Hon’ble Prime Minister by saying that in Rafale dealing Hon’ble Prime Minister is cent per cent thief and not chowkidar. It is alleged that the petitioner stated in the speech that the Hon’ble Prime Minister gave away Rs 30,000 crore to his thief friend Anil Ambani and the said amount was put in the pocket of Anil Ambani in connection with the Rafale deal. It is alleged that thereafter, the CJM has concluded the trial and held the petitioner guilty for the offence of defamation under sections 499 and 500 of the IPC and sentenced him to undergo simple imprisonment of two years. Feeling aggrieved the petitioner filed criminal appeal along with the application at Exhibit 5 for suspension of sentence before the District and Sessions Judge. The said application came to be dismissed by the Sessions Court at Surat on April 20, 2023. In its Order, the HC has extensively quoted from the Supreme Court’s judgement in the case – Subramanian Swamy v.

 

Union of India (2016) 7 SCC 221, to derive support for its findings and conclusion. In the judgment the SC has highlighted the importance of human dignity and analysed it in the context of section 499 IPC. In conclusion, the HC has stated that “in its 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”. However, the High Court has “requested” the concerned District Judge to decide the criminal appeal on its own merits and in accordance with law as expeditiously as possible. In result the High Court dismissed the application.