Sessions court grants bail to Rahul Gandhi till disposal of appeal
Court issues notice on plea for stay of conviction
NEW DELHI: A sessions court in Surat has admitted an appeal filed by top Congress leader Rahul Gandhi against his conviction and two years sentence in a defamation case for 'why all thieves had Modi surname' remarks.
The court also granted to bail to Gandhi and suspended his sentence till the pendency of appeal before fixing the matter for hearing on April 13.
Sessions Judge R P Mogera also issued notice to the complainant, BJP leader Purnesh Modi on Gandhi's appeal and an application for staying the conviction order passed on March 23, seeking a reply on or before April 11.
Gandhi, who was accompanied by senior party leaders, was represented by senior advocate R S Cheema.
He has been disqualified as an MP from Wayanad constituency in Kerala after conviction and sentence by the court of Chief Judicial Magistrate for his remarks made in a speech on April 13, 2019 in Karnataka's Kolar during the Parliamentary elections campaign.
In his appeal, Gandhi said the trial court hasn't considered the ratio of so many judgments that the collection of persons should be identifiable, definite, determinative and well-defined and doesn't discuss at all whether the persons having surname Modi or persons known as Modi can be said to be identifiable, definite, determinative and well-defined body of persons or not.
He also contended the trial court erred in believing that merely a person suffered pain because of defamatory imputation, he has a right to file complaint.
"In fact, if the imputation that 'why all thieves have surname Modi' is taken to be proved, it merely suggests that the said sentence was spoken in connection with Narendra Modi, Nirav Modi and Lalit Modi and not the Modi. If he had intention to harm Modis, he must not have just stopped at the sentence," the appeal said.
"Barring one sentence, all the alleged defamatory comments are against Narendra Modi personally.
The appellant/accused submits that the respondent/complainant is not an aggrieved person to file the complaint so far as the alleged defamatory statements against Narendra Modi are concerned," the appeal read.
"Only Narendra Modi can be considered as the person aggrieved of the offence of defamation and only he can file a complaint for the same and Purnesh Modi, the respondent/complainant has no right to file the complaint on his behalf and so the complaint for the alleged defamatory imputations against Narendra Modi by the complaint is not sustainable," it added.
Further, the appeal pointed out there is no Modi Samaj or community established on record and it is also not an identifiable, determinate, definite group, the appeal contended.
"The member of such collection of 13 crore persons certainly is not an aggrieved person who can file a complaint for the alleged defamatory allegations against 'Modi'," it said.
"The complaint is filed malafide to gain advantage in election by polarizing votes of so-called Modis. The appellant/accused had not only the right to criticise the Government and its functionaries, but it was his duty to do so, more particularly at the time of election. All in all, there is no mens rea in the imputation and so the offence of defamation is not made out," it further claimed.
Further, in his application for stay of conviction, Gandhi, besides citing lack of jurisdiction, contended the defamation complaint is not maintainable as the complainant is not a person aggrieved and there is no determinate group of persons here to allege defamation.
"The verdict under appeal has directly led to a situation resulting in the disqualification of the appellant/applicant as a legislator. If the operation of the judgment of conviction is not stayed, a by-election shall be held within the period stipulated and the petitioner shall forfeit his right to represent the constituency for the remaining part of his tenure. This loss is irreparable as even the subsequent acquittal of the appellant/applicant cannot undo the same," it said.
"The issue may also be looked at from the point of view of the electorate. The disqualification of an elected representative essentially interferes with the choice of the electorate in a free and fair election. The disqualification disentitles the said elected representative from re-contesting the by-poll and consequently the electorate has to forgo the right to have a representative, who is truly representative of the majority voters of the constituency," it added.