Thread by @barandbench

Sessions Court in Surat to hear plea by Congress leader Rahul Gandhi seeking stay on his conviction by a Magistrate court in a criminal defamation case.

Track this thread for live updates from Surat.

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Judge Robin Mogera has sat. Senior Advocate RS Cheema to make submissions for Rahul Gandhi.

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Cheema: Sec 389 of the CrPC provides for suspension of sentence pending appeal.
The court has powers to suspend the sentence pending appeal. The reply filed by the complainant only states that the court has 'discretionary' powers which can be exercised only in rarest cases.… twitter.com/i/web/status/1…

Cheema is citing judgments of the Supreme Court on interpretation of Section 389 of the CrPC

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Cheema: It is true that the power has to be exercised cautiously.

Cites Navjot Singh Sidhu vs State of Punjab's case.

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Cheema: Merits of the case obviously need to be considered.

While reading from a judgment, he says, "The power is an exception but the court must consider the consequences of conviction."

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Cheema: There is no hard and fast rule as such for staying a conviction. But the courts have settled the law on this point. The court has to give a reasoned order for staying the sentence.

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Cheema: Supreme Court has clearly said that in cases where sentence is life, death or more than 10 years, the courts should be slow in staying conviction. Even cases where moral turpitude is involved are among these categories.

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Cheema: Court has to consider if the convict will suffer an irreparable loss and an irreversible injustice if the discretionary powers aren't exercised.

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Cheema: Loss of constituency due to conviction and sentencing, disqualification are also considered to be 'exceptional' circumstances by the Apex Court for staying conviction.

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Cheema: Most important fact to be examined that he was elected member of Lok Sabha in 2019 from Wayanad, Kerala by a marging of 4,31,070 votes, which was a record margin.

But he has been disqualified now.

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Cheema: Irreparable loss and irreversible injury are the two factors.

I have to be the member of the Lok Sabha till it's term comes to and end.

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Cheema: We will need to examine the speech and also the locus of th complainant, whether he is an aggrieved person, as per law or not.

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Cheema: Law mandates only an aggrieved person can file a complaint. This would mean a person, who is defamed will be aggrieved person.
Explanation 2 to sec 499 (Defamation) of the IPC states it would be defamation if it is against a company, a group of persons etc.… twitter.com/i/web/status/1…

Cheema: I am defamed if my company, my group or collection of persons is defamed. Only then I can filed a complaint.
The speech needs to be read both textually and contextually because law says defamation is caused when the person intends to cause defamation or has knowledge or… twitter.com/i/web/status/1…

Cheema: My speech isn't defamatory unless drawn out of context, looked under a magnifying glass to create or to make it defamatory.

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Cheema: Basically a litigation inflicted upon me for daring to be vociferously critical about our PM.

Trial was harsh and unfair to me.

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Cheema: My colleague Mr Panwala has conducted a textbook perfection trial. This was an illustrative case with regards to electronic evidence. I need to say this (smiles)

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Cheema: They claim to have read the news article of my speech in Karnataka.
Law is clear news article cut out is not a paper but only the newspaper as a whole is a paper.

We are living in dangerous times. Things are recorded whenever we speak. Each speech is recorded by the… twitter.com/i/web/status/1…

Cheema: Law is if you want to bring something on record you need to bring the source of the speech. But in this case every mode failed as they did not bring on record the entire speech.

The speech was made on April 13, in Kolar. Reported by local press on April 14. The… twitter.com/i/web/status/1…

Cheema: The complainant had received a message on his WhatsApp. He lives in Surat speech was made in Kolar, so jurisdiction is questionable.

Suppose some ghost sends me a message and I received it while I am at my home in Chandigarh can a invoke jurisdiction of a court in… twitter.com/i/web/status/1…

Cheema: The complainant submitted some CDs from the office bearer of a local BJP office.

These documents were not put to the accused by playing it to the accused like "did you make this speech?" etc

Complainant then goes to Gujarat High Court seeks stay on trial on the ground… twitter.com/i/web/status/1…

Cheema: There is one Sankat Mochan in this matter. He suddenly became an eyewitness for the complainant after 2 years of filing of the case. He exaggerated the speech.

We told him that you are exaggerating but he said no, the material (speech copy) made available is less… twitter.com/i/web/status/1…

Sr Adv Cheema seeks a five minutes break.

Court allows him to take a break.

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Cheema: I have seen a very strange judgment that the Trial Court Judge made a hotchpotch of all the evidence on record and claimed that he could find my guilt from my sec 313 statements.

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Cheema now reads from Rahul Gandhi's section 313 statements recorded by the Magistrate Hadirash Varma.

He said he didn't utter words "Modis" which are attributed to him.

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Cheema: You have to show that the statement is absurd.

He has clearly said he didn't utter such a word.

The judge has hotchpotched the evidence as the newspaper cutting spoke different to what the speech CD indicated.

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Cheema: This case will be a historic one not because of the individual, who is sentenced...

Spoken word even in England has now become a civil offence.

Law in its application need very close and minute examination.

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Cheema: For instance, if someone says You Punjabis are quarrelsome and abusive etc.
Can I go and file a defamation case? Such words are often used for Gujaratis, other linguistic groups, religious entities etc.

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Cheema is reading from some judgements on point of who can be an aggrieved person to file a defamation complaint.

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Cheema: It is claimed there are 13 crore Modis across India. I find it mind boggling that a populace of that figure would be categorised as 'collection of persons'

Gujarat's population was nearly 6 crore in 2011.

You cannot have a collection of persons in such a huge… twitter.com/i/web/status/1…

Cheema: It is claimed there are 13 crore Modis across India. I find it mind boggling that a populace of that figure would be categorised as 'collection of persons'

Gujarat's population was nearly 6 crore in 2011.

You cannot have a collection of persons in such a huge… twitter.com/i/web/status/1…

Cheema reads from Complainant's statement, where he has stated that Modi surname isn't an association but has said that there are over 13 crore Modis.

The complainant has further said that he has no knowledge of Lalit Modi or Nirav Modi fall in his caste.

#RahulGandhi… twitter.com/i/web/status/1…

Cheema reads from other witness' statement, who claimed that after reading the speech he felt insulted because he has Modi surname and also because it was against Narendra Modi.

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Cheema now reads from another witness' statement who testified that Modi isn't a case but Gosai is a caste and people call Gosai caste people as Modis.

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Cheema: There is so much confusion as to what Modi community is and this is coming from the testimony of the complainant and his witnesses. If we try to identify this group as such the evidence confuses us.

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Cheema: At 11:51 am my client is pronounced guilty and within half n hour he is handed over the harshet and maximum punishment.

The judge has said that you are an MP and I want to send a message to the society.

Also, I want to express shock that the trial court for saying… twitter.com/i/web/status/1…

Cheema: I tendered an apology to the Supreme Court (for attributing Chowkidar hi Chor hai comment to the top court) in November 2019. But I made speech in question in this case in April 2019. So how can the judge rely on the proceedings where the complainant has said I was… twitter.com/i/web/status/1…

Cheema: Even the Magistrate in the order has said that I was warned by the Supreme Court. But the warning was in November and I made the speech in Kolar in April 2019, which is nearly seven months prior to that.

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Cheema: I am sure the court was very well aware that had it punished me even a one day less I wouldn't have been disqualified.

And the next question I ask is - Yadi mera gunaah itna bada tha toh mahoday (judge) mujhpe fine toh lagaiye.

These are perfunctory orders.… twitter.com/i/web/status/1…

Cheema: In a democracy an Opposition is an integral importance. Auditing the govt. Holding the govt accountable. Nexus between govt and the big economic entities are all issues that the general public is concerned. When we look at the speeches we aren't looking at a murderer a… twitter.com/i/web/status/1…

Cheema concludes his arguments.

Advocate Harshit Tolia now makes submissions for complainant Purnesh Modi.

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Tolia cites an order of Gujarat High Court on interpretation of sec 389 of CrPC which states that courts have to record concise reasons for staying or not staying the conviction and sentence.

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Tolia: Accused has identical 10 to 12 cases of criminal defamation.

Supreme Court has reprimanded him.

Even after court held him guilty he maintains to have not done anything wrong. This is arrogance.

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Tolia: He says that he is a sitting MP and due to conviction and sentence he is disqualified. He claims that there can be bye-elections. He wants to contest in the coming elections. He has claimed to have won with a thumping majority etc.

But can these factors be considered at… twitter.com/i/web/status/1…

Tolia: They have argued that I filed a complaint based on a newspaper cutting. But I don't have to prove my case beyond reasonable doubt at that stage.

They have submitted voluminous documents now. I would like to file a response to the same. But is this court required to go… twitter.com/i/web/status/1…

Tolia is reading from various judgments to bring home his point that the "discretionary powers" of the court to stay or not to stay the conviction etc has to be done in rarest of rare cases.

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Tolia: Losing ones job is no ground for this court to exercise it's extraordinary powers to suspend the sentence, Gujarat High Court has already held this.

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Tolia: The law is the moment you are convicted and sentenced you are disqualified.

Please 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… twitter.com/i/web/status/1…

Tolia: No leniency needs to be shown in this case. Being an MP if he commits an offence it becomes more grave.

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Tolia cites a case of an MLA's conviction, who had slapped a doctor. His conviction was suspended after he entered into a compromise by apologising to the victim therein.

"But nothing of this sort has happened in the instant case. The above is an exceptional circumstance in… twitter.com/i/web/status/1…