In his application seeking the suspension of conviction, which will come up for hearing on April 13, the former Congress president said, "It appears reasonable to argue that the applicant was really sentenced in a manner so as to attract the order of disqualification (as an MP)."
Congress leader Rahul Gandhi on Monday told a sessions court in Surat his conviction by a magistrate's court in a 2019 defamation case over his "Modi surname" remark was erroneous, patently perverse, and he was sentenced in a manner so as to attract disqualification as a Member of Parliament.
Gandhi, in his appeal filed in the sessions court against the conviction and two-year jail term handed last month, submitted he was treated harshly by the trial court which was "overwhelmingly influenced" by his status as an MP, and maintained there is no such thing as a definite Modi samaj or community on record.
In his application seeking the suspension of conviction, which will come up for hearing on April 13, the former Congress president said, "It appears reasonable to argue that the applicant was really sentenced in a manner so as to attract the order of disqualification (as an MP)."
Earlier in the day, Additional Sessions Judge RP Mogera's court granted him bail till the disposal of his appeal on a bond of Rs 15,000.
Gandhi (52), elected to the Lok Sabha from Wayanad in Kerala in 2019, was convicted in the criminal defamation case on March 23 by the court of Chief Judicial Magistrate H H Varma and sentenced to two years in jail. The magistrate's court had granted him bail for 30 days to appeal the verdict. A day later, he was disqualified as a Lok Sabha member under provisions of the Representation of the People Act, 1951.
“The judgment of conviction and order of sentence passed by the CJM (Chief Judicial Magistrate) is erroneous, patently perverse, in flagrant violation of principles of appreciation of evidence in criminal trial, illegal and unwarranted on the facts and circumstances of the case and on the evidence to substantiate the charge levelled against the appellant/accused," said Gandhi in his petition in the sessions court.
The judgment of conviction and order of sentence was passed without any evidence, he claimed in the plea filed through his lawyer.
The magistrate's court judgement was passed on the basis of assumptions, presumptions, conjectures, surmises and suppositions which are not permissible in the criminal law at all, according to the petition.
The order of conviction and sentence was bad in law and against the weight of evidence, and the trial judge was "overwhelmingly influenced" by his status as an MP, he said.
In such a case, he (trial judge) certainly presumed that the award of maximum sentence of two years would entail his disqualification as a Member of Parliament, said the plea.
The Representation of the People Act holds that an MP/MLA convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction.
"Parliamentarian, in Opposition, is expected or rather required to be 'vigilant and critical', and the view of the trial court that a Member of Parliament deserves to be awarded the highest punishment because of his status "is wholly unwarranted and manifestly unjust," said the four-time MP in his plea.
By the very nature of his task, a politician in Opposition cannot always weigh his words in golden scales, he said, adding, "Hence, it is incumbent upon courts to focus on the essence and spirit of the speech (related to Modi surname) made rather than on the tone and tenor."
He said "a strong and uncompromising opposition" is the essential requirement of a "true and healthy democracy."
"While performing his duties as a critic of the government, a Member of the Legislature, is very likely to cause annoyance and/or embarrassment to those in power," Gandhi stated.
While granting bail to Gandhi, the sessions court issued a notice to the complainant in the case, Gujarat BJP MLA Purnesh Modi, over the plea for the suspension of conviction and sought his response by April 10.
When the magistrate's court took the view that he deserved to be awarded the highest punishment because of being a Member of Parliament, it is expected that the judge would also be aware of the mandatory disqualification that it entails, Gandhi said.
"Such disqualification entails the rejection of the mandate of the electorate on one hand and huge burden on the exchequer on the other (for holding bypoll)," said the Congress leader.
Gandhi maintained the trial court erred in believing the accused didn't stop after allegations against Prime Minister Narendra Modi, and industrialists Nirav Modi, Lalit Modi, Mehul Choksi and Vijay Mallya, and therefore he intended to defame all persons with the Modi surname.
The said sentence, "Why all thieves have surname Modi," was spoken in connection with PM Modi, Nirav Modi and Lalit Modi, and not people with the "Modi" surname, said the plea.
Barring this sentence, all the alleged defamatory comments are against PM Modi personally, the Congress leader said in the plea, adding there is no such thing as Modi samaj or community on record.
He said the complainant (MLA Purnesh Modi) terms the Modh Vanik Samaj or Modh Gachi Samaj or Teli Gachi Samaj as Modi samaj, even when there is no documentary evidence on record that they are all part of the Modi samaj.
Even otherwise, a Modi Samaj is "not an identifiable, determinate, definite group," Gandhi said.
"There are Modis in every community. There is no organization of persons having the surname Modi. There is no particular group of Modis which is referred to in the impugned defamatory statement as distinguished from the rest of the Modis," he said.
"Modis are 13 crores (in number), and all these people will not have a right to file the complaint because it is not an identifiable, definite, determinate group or collection of persons," said the 52-year-old Congress leader.
While awarding him the maximum permissible sentence (two years), the trial court treated it as "a case of extreme depravity" without giving attention to the fact that the petitioner (Gandhi) was a first-time offender, said the plea.
The appellant has been treated harshly both on the merits of the controversy (due to the remark) as well as at the stage of determination of sentence taking into account his position as a Member of Parliament, he said.
Gandhi said the proceedings of trial did not satisfy the requirements of a fair trial, and there were elements of unfairness vitiating the trial at various stages.
He said the defamation complaint was filed in "hot haste" at Surat by a sitting MLA of Bharatiya Janata Party (Purnesh Modi) two days after he made the comment at an election rally at Kolar in Karnataka.
There was no prima facie material to accept the allegations made by MLA Modi, the Congress leader said, adding the complaint was "motivated by political considerations".
The lower court observation, that the accused insulted and defamed the PM's surname and called him a “thief” for political gains, had no basis, Gandhi said.
-With PTI Input