Gujarat High Court: While hearing a criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (‘Cr.PC’) by Congress leader Rahul Gandhi (petitioner), for quashing and setting aside the impugned order of the Surat Sessions Court dated 20-04-2023 wherein his plea to stay the conviction order was dismissed, the Single Judge Bench of Hemant M. Prachchhak, J., said that there was no reasonable ground to stay the conviction of the petitioner and dismissed the criminal revision petition.
Background
A private complaint was filed against Rahul Gandhi, wherein it was alleged that he gave a speech at Kolar Near Bengaluru and addressed the Prime Minister as a thief and compared him with several economic offenders of India like Nirav Modi, Mehul Choksi, Lalit Modi and Vijay Malya. It was also alleged that Gandhi had also asked that why all thieves have the surname Modi and defamed the Prime Minister by saying that in Rafale deal the Prime Minister is 100 percent thief and not chowkidar. The Chief Judicial Magistrate (‘CJM’) had found Rahul Gandhi guilty of the offence punishable under Sections 499 and 500 of the Penal Code, 1860 (‘IPC’) and sentenced him to undergo simple imprisonment of two years. Being aggrieved with the said order of the CJM, he had preferred an appeal before the District and Sessions Court, Surat. However, the said appeal was dismissed vide impugned order dated 20-04-2023. Aggrieved by the impugned order, a revision petition was preferred before the High Court to set aside the impugned order and stay the conviction order passed by the CJM.
Court’s Decision
Regarding the ‘seriousness of the offence’, the Court said that the Trial Court had specifically given findings of gravity of the seriousness of the offence, that the petitioner was (i) member of parliament (ii) president of second largest national level political party and (iii) president of the party that ruled the country for more than 50 years, who was giving a public speech to the thousands of people and made a false statement in the election with clear intention to affect the result of the election. The Court said that it appeared that the petitioner had suggested the name of Prime Minister to add sensation, apparently and for an intention to affect the result of the election of the candidate of the constituency concerned belonging to the political party of the Prime Minister and then the accused did not stop there but made a statement that “saare choro ke naam modi hi kyu hai”. Thus, the Court said that the present case would certainly fall within the category of serious offence. The Court also said that the said act would amount to an offence punishable under Section 171-G of the IPC also and thus, the offence punishable under Section 499 of the IPC was committed with an intention to make a false statement in connection with election, which is an offence punishable under Section 171-G of the IPC.
Further, the Court said that the petitioner is a Member of Parliament possessing high position in the society and has a bounden duty not to scandalize any person from the society. The petitioner had breached the modesty, even if his version of it was accepted and further petitioner also had a duty to each individual and the society in general not to influence the election based on false fact. Thus, the Court considered that the offence committed by the petitioner was in the category of moral turpitude also.
The Court said that not only intention or knowledge but ‘reason to believe’ was an additional factor to prosecute. In the present case, reason to believe was sufficiently established and ‘reason to believe’ is on lower pedestal than intention or knowledge and in the matter at hand, all the three ingredients, i.e., intention, knowledge and reason to believe were interchangeably satisfied. Considering the facts and circumstances of the present case, and the evidence on record, the Court was of the view that the Trial Court had not committed any error of facts and law in passing the impugned order of conviction against the petitioner for the alleged offences.
Regarding the argument of the petitioner that the present offence can never be a serious offence due to the fact that two years is the maximum punishment and therefore power under Section 389 of the Cr.PC ought to be exercised necessarily, the Court said that it was crucial to note that the maximum punishment in any offence is not the only indicator of the seriousness of the offence. There may be other factors having a larger impact on the society as a whole and the enormity of the issue at hand. The Court also added that in the present case, the conviction was under Section 499 of the IPC for the offence of defamation not just against one person but a large segment of the society – an identifiable class. Further, the Court said that the offence of Section 499 is to be examined not merely in the context of the maximum punishment it entails but also in the light of the facts and circumstances, the persons against whom it has been made and by whom it has been made, for the purpose of exercising the power under Section 389 of the Cr.PC.
The Court said that the offence of Section 499 can certainly be considered to be a serious offence for affecting the society at large in a case wherein a large number of persons of the society have been defamed.
In understanding the offence of defamation, its seriousness and the link of the offence with human dignity and fundamental rights of persons who are defamed by accused persons, the Court referred on the observations of the Supreme Court in Subramanian Swamy v. Union of India, (2016) 7 SCC 221, wherein the issue of reputation of an individual or a class was linked with Section 499, it was noted that world over, reputation as a concept has been recognised to be an important part of the personality of a person and has itself become a fundamental human right.
Thus, the Court said that in order to gauge the seriousness of the offence, another factor which compounds the case against the petitioner was that the defamation alleged was of a large identifiable class and not just an individual. Due to the said fact, the conviction partakes the character of an offence affecting a large section of the public.
Further, the Court said 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 ensured 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 was assumed to be aware of the same and being a public personality is vested with the duty to exercise this vast power with caution ensuring that dignity and reputation of a large number of persons or any identifiable class was not jeopardised due to his political activities or utterances.
Therefore, Court said that 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. 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. The Court also said that moreover, as many as ten criminal cases are pending against the petitioner, further the Court added that it is now need of the hour to have purity in politics. Representatives of people should be a man of clear antecedent. The Court also noted that after filing of the said complaint, another complaint was filed against the petitioner, out of which, one complaint was filed by the grandson of Vir Sawarkar when the accused used defamation utterances against Vir Sawarkar at Cambridge and another complaint was also filed in Court of Lucknow. Therefore, the Court said that in the backdrop of the said circumstances, refusal to stay the conviction would not, in any way, result in injustice to the petitioner.
Thus, the Court said that there was no reasonable ground to stay the conviction of the petitioner. The impugned order passed by the appellate Court was just, proper and legal and do not call for any interference. The criminal revision application was dismissed.
[Rahul Gandhi v. Purnesh Ishwerbhai Modi, 2023 SCC OnLine Guj 2156 Decided on: 07-07-2023]
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