2023 LiveLaw (SC) 598
IN THE SUPREME COURT OF INDIA
B.R. GAVAI; J., PAMIDIGHANTAM SRI NARASIMHA; J., SANJAY KUMAR; J.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8644/2023; 04-08-2023
RAHUL GANDHI versus PURNESH ISHWARBHAI MODI & ANR.
Representation of the People Act, 1950; Section 8(3) - Indian Penal Code, 1860;
Section 499 – Criminal defamation case over the "why all thieves have Modi
surname" remark - Trial Judge has awarded the maximum sentence of
imprisonment for two years. Except the admonition given to the appellant by the
Apex Court no other reason has been assigned while imposing the maximum
sentence of two years. It is only on account of the maximum sentence of two years,
the provisions of Section 8(3) of the RP Act have come into play. Had the sentence
been even a day lesser, the provisions of Section 8(3) of the Act would not have
been attracted. Particularly, when an offence is non-cognizable, bailable and
compoundable, the least that the Trial Judge was expected to do was to give some
reasons as to why, in the facts and circumstances, he found it necessary to impose
the maximum sentence of two years. (Para 5, 6)
Representation of the People Act, 1950; Section 8(3) - Indian Penal Code, 1860;
Section 499 – Defamation - Stay of Conviction - Though the Appellate Court and the
High Court have spent voluminous pages while rejecting the application for stay of
conviction, the reasons for maximum sentence have not even been touched in their
orders. No doubt that the alleged utterances by the appellant are not in good taste.
A person in public life is expected to exercise a degree of restraint while making
public speeches. May be, had the judgment of the Apex Court in the contempt
proceedings come prior to the speech, the appellant would have been more careful
and exercised a degree of restraint while making the alleged remarks, which were
found to be defamatory by the Trial Judge. (Para 7, 8)
Representation of the People Act, 1950; Section 8(3) - the ramification of Section 8
(3) of the Act are wide-ranging. They not only affect the right of the appellant to
continue in public life but also affect the right of the electorate, who have elected
him, to represent their constituency. Taking into consideration the aforesaid
aspects and particularly that no reasons have been given by the learned Trial Judge
for imposing the maximum sentence which has the effect of incurring
disqualification under Section 8(3) of the Act, the order of conviction needs to be
stayed, pending hearing of the present appeal. Therefore, stayed the order of
conviction during the pendency of the present appeal. (Para 9, 10)
(Arising out of impugned final judgment and order dated 07-07-2023 in CRLRA No. 521/2023 passed by
the High Court of Gujarat at Ahmedabad)
For Petitioner(s) Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. R.S. Cheema, Sr. Adv. Mr. Harin. P. Raval, Sr.
Adv. Mr. Prashanto Chandra Sen, Sr. Adv. Mr. Prasanna S., AOR Ms. Tarannum Cheema, Adv. Mr.
Kanishka Singh, Adv. Mr. Nikhil Bhalla, Adv. Mr. Amit Bhandari, Adv. Mr. Avishkar Singhvi, Adv. Mr.
Siddharth Seem, Adv. Mr. Raghav Kacker, Adv. Mr. Sumit Kumar, Adv. Ms. Swati Arya, Adv. Mr. Yuvraj
Singh Rathore, Adv.
For Respondent(s) Mr. Mahesh Jethmalani, Sr. Adv. Mr. Harshit S Tolia, Adv. Mr. P. S. Sudheer, AOR Mr.
Rishi Maheshwari, Adv. Mr. Bharat Sood, Adv. Mr. Jeet Rajyaguru, Adv. Mr. Biren Panchal, Adv. Ms. Riya
Dani, Adv. Ms. Miranda Soloman, Adv. Ms. Mughda Pande, Adv. Mr. Ravi Sharma, Adv. Mr. Ajay Awasthi,
Adv. Mr. Wedo Khalo, Adv. Mr. Sitesh Narayan Singh, Adv. Mr. Tushar Mehta, Solicitor General Ms.
Deepanwita Priyanka, AOR
1
ORDER
1. Leave granted.
2. Heard Dr. Abhishek Manu Singhvi, learned senior counsel for the appellant and Shri
Mahesh Jethmalani, learned senior counsel for the respondent No.1, on the question of
interim protection.
3. The present appeal challenges the judgment and order passed by the learned
Single Judge of the High Court dismissing the revision petition, which was in turn filed
challenging the order of the learned Sessions Judge, thereby rejecting the prayer for stay
of conviction.
4. The appeal filed by the present appellant challenging the order of conviction and
sentence passed by the leaned Trial Judge is pending before the Appellate Court. The
arguments advanced by both Dr. Abhishek Manu Singhvi, and Shri Mahesh Jethmalani,
learned senior counsel, touch the merits of the matter. We, therefore, refrain from
observing anything about the said arguments, inasmuch as it may adversely affect the
rights of either of the parties in the appeal which is pending before the learned Appellate
Court.
5. Insofar as grant of stay of conviction is concerned, we have considered certain
factors. The sentence for an offence punishable under Section 499 of the Indian Penal
Code, 1860 (for short “IPC”) is simple imprisonment for two years or fine or both. The
learned Trial Judge, in the order passed by him, has awarded the maximum sentence of
imprisonment for two years. Except the admonition given to the appellant by this Court in
contempt proceedings [Contempt Petition (Crl) No.3/2019 in Yashwant Sinha and
Others v. Central Bureau of Investigation through its Director and another, reported
in (2020) 2 SCC 338] no other reason has been assigned by the learned Trial Judge while
imposing the maximum sentence of two years. It is to be noted that it is only on account
of the maximum sentence of two years imposed by the learned Trial Judge, the provisions
of sub-section (3) of Section 8 of the Representation of the People Act, 1950 (for short,
“the Act”) have come into play. Had the sentence been even a day lesser, the provisions
of subsection (3) of Section 8 of the Act would not have been attracted.
6. Particularly, when an offence is non-cognizable, bailable and compoundable, the
least that the Trial Judge was expected to do was to give some reasons as to why, in the
facts and circumstances, he found it necessary to impose the maximum sentence of two
years.
7. Though the learned Appellate Court and the learned High Court have spent
voluminous pages while rejecting the application for stay of conviction, these aspects have
not even been touched in their orders.
8. No doubt that the alleged utterances by the appellant are not in good taste. A person
in public life is expected to exercise a degree of restraint while making public speeches.
However, as has been observed by this Court while accepting affidavit of the appellant
herein in aforementioned contempt proceedings, the appellant herein ought to have been
more careful while making the public speech. May be, had the judgment of the Apex Court
in the contempt proceedings come prior to the speech made by the appellant, the
appellant would have been more careful and exercised a degree of restraint while making
the alleged remarks, which were found to be defamatory by the Trial Judge.
9. We are of the considered view that the ramification of subsection (3) of Section 8 of
the Act are wide-ranging. They not only affect the right of the appellant to continue in public
2
life but also affect the right of the electorate, who have elected him, to represent their
constituency.
10. We are of the considered view, taking into consideration the aforesaid aspects and
particularly that no reasons have been given by the learned Trial Judge for imposing the
maximum sentence which has the effect of incurring disqualification under Section 8(3) of
the Act, the order of conviction needs to be stayed, pending hearing of the present appeal.
11. We, therefore, stay the order of conviction during the pendency of the present
appeal.
12. However, we clarify that the pendency of the present appeal would not come in the
way of the Appellate Court in proceeding further with the appeal. The appeal would be
decided on its own merits, in accordance with law.
13. The parties would be at liberty to approach the learned Appellate Court for
expeditious disposal of the appeal, which request would be considered by it, on its own
merits.
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