Senior advocate Abhishek Manu Singhvi, arguing on behalf of Gandhi before the court of Justice Hemant Prachchhak, submitted that the state prosecution as well as the complainant did not have locus standi to oppose Gandhi’s plea.

Senior advocate Nirupam Nanavati, representing the original complainant, BJP MLA Purnesh Modi, however, said that he wishes to file a reply to Gandhi’s plea and bring forth some factual aspects of the case. The court granted him time till May 1 to file his reply.

It was Singhvi’s case that the complainant’s participation is only limited to the point of securing conviction and his scope in the criminal case cannot extend beyond to oppose a stay on conviction, as the same is a matter between the accused who is facing conviction and the court.

Singhvi also said that the defamation complaint is “in personam” in nature and is a “non-societal” offence and thus, the state, too, cannot be in a position to oppose the stay being sought on the conviction by Gandhi.

Public Prosecutor Mitesh Amin, however, said that the state has a “statutory right of audience” and that it has locus in any application filed under Section 389 (seeking revision) of CrPC.

Meanwhile, Singhvi said that there are six basic grounds on which he is seeking a stay on the conviction. He added that the conviction is neither an offence of moral turpitude nor does it comprise a serious offence, as defined under various judgments.

To this effect, Singhvi added that the judgments the Surat sessions court had placed reliance on while rejecting Gandhi’s plea seeking a stay on conviction would instead hold a reverse benefit in favour of the Congress leader, as the said cited judgments were for serious offences, such as murder, abduction and rape, among others.

He said that by denying Gandhi’s plea for stay on conviction in such a case of alleged criminal defamation, the court will be “rewriting” the scope of Section 389 of CrPC.

Touching upon the issue of jurisdiction and locus of Purnesh Modi in the case, Singhvi said that the alleged defamatory statement by Gandhi doesn’t invoke any identifiable class of people. He added that only three were named in Gandhi’s statement – Nirav Modi, Mehul Choksi and Vijay Mallya – and none of the three are complainants in the case.

During a political campaign at Kolar in Karnataka in April 2019, Gandhi had asked “why all thieves share the Modi surname”, leading to Purnesh Modi filing a complaint against him.

Adding that defamation is “in personam” and creates a bar on jurisdiction therein, Singhvi said that the defamation complaint was non maintainable to start with and to entertain the same means “you make a fool of the law” and a “mockery of the defamation law”.

“Your amorphous, undefinable community is per se not defamable,” Singhvi said in reference to Purnesh Modi being the complainant in the case.

He added that the trial was vitiated and exemplified with several points to establish his argument. Submitting that the Surat court granted the maximum punishment after conducting a hearing on the aspect of punishment for 10 minutes, Singhvi argued that the sentencing was reasoned on the ground that Gandhi was earlier admonished by the Supreme Court in his statements pertaining to the Rafale deal. Singhvi pointed out that the reliance could not have been placed as the SC’s admonishment had come seven months after the alleged defamatory statement made in Kolar, Karnataka.

Moreover, according to Singhvi, under criminal law, a conclusion could only have been drawn after due verification of the said SC order and after “confronting” the accused on the same.

It was also pointed out that the magistrate court, while issuing the summons in May 2019, had “zero prosecutable evidence” at the time and couldn’t have issued summons, as summoning is the “bedrock” of the trial. Singhvi added that statements of the two witnesses were recorded under Section 313 of the CrPC well after a year of the complaint being filed. He claimed that that no evidence under Evidence Act or IT Act has been produced to justify the trial proceedings, and without such evidence, conviction cannot lie.

Meanwhile, when asked by the court on how the state would explain the lacuna as pointed out by Singhvi, the public prosecutor said that this is not the stage “to scrutinise these aspects” and are required to be “agitated at the appropriate time”.
Singhvi further argued that irreversible consequences flow from the conviction, including re-election, which cannot be reversed by a court of law.

Justice Hemant Prachchhak orally remarked during Singhvi’s argument that extraordinary consequences arise from the conviction with irreversible damage. “It is more his duty towards the public at large, he is representing the public at large, he has to make statements within limits and within bounds,” he added.

Elaborating on the irreversible damage that would be caused to Gandhi when re-election takes place on the seat now vacant, Singhvi said, “No election petition can unseat (the one elected in re-election) or install me (Gandhi who stands disqualified from the seat). These are a balance of conveniences. For what? For a murder I have committed?… Have I put my hand in the till and I have been corrupt? Have I murdered somebody, assaulted somebody? I have done defamation allegedly on a first appeal. Defamation has at least three more appeals… at the most I am standing at the first appeal level (and) I would be disqualified for six or eight years, or in effect rendered irreversible by a byelection. And I can’t contest the election.”