A Surat's sessions court has fixed April 20 as the date to pronounce its order on Congress leader Rahul Gandhi's plea for a stay on his conviction in a criminal defamation case filed by a BJP leader over his remark about the "Modi surname" during the campaign for the 2019 Lok Sabha elections at Karnataka's Kolar.
Additional sessions judge R P Mogera, who heard the arguments from both sides on Thursday, posted the matter for April 20 for pronouncement of his order.
Arguing for Gandhi, senior advocate R S Cheema contended that the trial in the defamation case over the Congress leader's "Modi surname" remark was "not fair" and that there was no need to award the maximum punishment in the case.
On March 23, a metropolitan magistrate's court had sentenced the former Congress president to two years in jail after holding him guilty for his remark, "How come all thieves have Modi as the common surname".
With his conviction and two years jail, Gandhi was disqualified as a Member of Parliament from Wayanad Lok Sabha constituency in Kerala.
In his plea, Cheema said that the magisterial court should have heard Gandhi's entire speech, which he claimed was not defamatory.
The counsel claimed the remark was quoted out of context to make a case for defamation.
He also claimed that the judgment delivered by the magistrate was "strange", because it "made a hotchpotch of all the evidence on record".
Advocate Harshit Toliya for the complainant, Purnesh Modi said that his client was hurt by Gandhi's speech and therefore he came to the court.
He also submitted that Gandhi had refused to apologise before the court despite the opportunity.
During the hearing, Cheema also said that the court has powers to suspend the sentence. Citing a judgment, Cheema said although the power is an exception but the court must consider the consequences of conviction.
The court has to consider if the convict will suffer an irreparable loss and an irreversible injustice if the discretionary powers aren't exercised, he said.
"Even the Magistrate in the order has said that Gandhi was warned by the Supreme Court. But it is surprising that the warning was in November and I made the speech in Kolar in April 2019, which is nearly seven months prior to that. How come is that possible," he asked.
He said that the loss of constituency due to conviction and sentencing, disqualification are also considered to be 'exceptional' circumstances by the apex court for staying the conviction.
Cheema also said that most important fact is to be examined that Gandhi was elected member of Lok Sabha in 2019 from Wayanad, Kerala by a marging of 4,31,070 votes, which was a record. But he has been disqualified now.
"I have to be the member of the Lok Sabha till it's term comes to and end," he pleaded.
Cheema also said that the court will need to examine the speech and also the locus of the complainant whether he is an aggrieved person, as per law or not.
Cheema also said that in a democracy an Opposition party is an integral importance. "When we look at the speeches, we aren't looking at a murderer a roberer etc," Cheema said.
"We are looking at a speech made during an election campaign telling people why the present government needs to go. So in such cases, courts needs to consider all these facts. Larger public interests needs to be considered," Cheema said.
"The speech isn't at all defamatory unless drawn out of context. Basically a litigation was inflicted upon me for daring to be vociferously critical about our PM," he said, adding, "The trial court was harsh and unfair to me."
Cheema also said that the complainant had received a message on his WhatsApp. He lives in Surat speech was made in Kolar, so jurisdiction is also questionable.
Opposing the submissions, a counsel for complainant said that the accused has identical 10 to 12 cases of criminal defamation. "The Supreme Court has reprimanded him. Even after court held him guilty he maintains to have not done anything wrong. This is arrogance," he said.
With regard to plea for leniency, the counsel asked the court to consider the gravity of the offence. "He is the sitting MP. He was the president of the second largest party at the time when he gave a speech. His party was India's first ever largest party. His speech made a huge impact on the people of India. He tried to sensationalise his own speech" Tolia said.
The counsel also claimed that the convict, his party leaders his associates are making unfair comments on the court. They have also made several contemptuous statements against the court and its judgment, he added.
"In his speech, he spoke of PM Modi but didn't stop there and have gone beyond it," Tolia said.
"My client is hurt by his speech, and thus the complaint," Tolia said, adding "Gandhi's conduct deserves no sympathy and his sentence shouldn't be suspended."
