'Rahul Gandhi Is Sitting MP, Busy With Attending Parliament': Jharkhand HC While Exempting Personal Appearance In Modi Surname Defamation Case

Justice Sanjay Kumar Dwivedi, while placing reliance on Bhaskar Industries Ltd. Versus Bhiwani Denim & Apparels Ltd. & Ors., (2001) 7 SCC 401, said, “Thus, in view of the above ratio of the Hon’ble Supreme Court, the court comes to a conclusion that prima facie it appears that the petitioner is a sitting Member of Parliament and he is busy with other works including attending the Parliament Session. Further in para-15, the terms and condition for such exemption has been stated to be complied by the petitioner by way of filing the fresh affidavit before the learned court and in view of said statement, the trial will not hamper and the case will proceed and there is justification of allowing the said petition under Section 205 Cr.P.C.”

The Court set aside the order of Judicial Magistrate rejecting the petition filed by Gandhi under Section 205 Cr.P.C. to dispense with the personal attendance.

Consequently, the application submitted by him to dispense with the personal appearance before the court on all the dates and adjournment and permitting his counsel to appear on his behalf, was allowed on the following conditions:-

“(i) The petitioner shall give an undertaking to the learned trial court that he will not dispute his identity in his case and that the name of the learned Advocate representing him before the learned court will be disclosed before the learned court and he will be permitted to represent the petitioner and would appear before the learned trial court on his behalf on each and every date of hearing and that he shall not object recording of evidence in his absence and no adjournment shall be asked on behalf of the petitioner or his Advocate who will represent the petitioner.

(ii) Considering that the case is summary in nature and the substance of explanation can be explained to the learned counsel appointed by the petitioner.

(iii) There will not be a failure on the part of the Advocate of the petitioner who will represent the petitioner either to appear before the learned court on each adjournment or any adjournment sought on behalf of the petitioner and if the learned trial court comes to the conclusion that the petitioner or his advocate is trying to delay the trial in that case, it would be upon the learned court to exercise its power under SubSection 2 of section 205 Cr.P.C and direct the appearance of the petitioner on each and every date of adjournment.

(iv) The petitioner is directed to file a fresh petition on affidavit in light of the above directions before the learned trial court.”

The defamation case was filed by Advocate Pradeep Modi, a practitioner in Ranchi, pertaining to Rahul Gandhi's remark on 'Modis' during an election rally ahead of the 2019 Lok Sabha polls.

Gandhi, a sitting Member of Parliament and one of the leaders of the Indian National Congress Party was addressing the Parivartan Ulgulan Rally on 02.03.2019 and in the said Rally, Gandhi had said, “I have a question. Why do all of them — all of these thieves — have Modi Modi Modi in their names? Nirav Modi, Lalit Modi, Narendra Modi. And if we search a bit more, many more Modis will come out.”

In the background of the same, a complaint case was filed and the court took cognizance against him under Section 500 of the Indian Penal Code. His plea against order taking cognizance was dismissed by judgment dated 05.07.2022.

Advocate Kaushik Sarkhel appeared for Gandhi in this writ petition.

Advocate Sarvendra Kumar, the counsel appearing on behalf of Pradip Modi, the complainant, submitted that a petition under Section 205 Cr.P.C. can be allowed in exceptional circumstances, however, Gandhi had filed the said petition after three years.

In the verdict, Justice Dwivedi, while expounding on Section 205 of Cr.P.C., emphasized that it clearly speaks that whenever a Magistrate issues a summons he may, if he sees reason to do so, dispense with the personal attendance of the accused and permit him to appear by his pleader.

He also emphasized that as per sub-section 2 of section 205 of Cr.P.C., the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinafter provided.

Justice Dwivedi clarified, “Thus the learned Magistrate has a discretion to dispense with the personal attendance of the accused and permit to appear by the pleader if sees no express reason to do so applicable to the extent that reason should be sufficient reason requirement of law is that the Magistrate sees the reason he may dispense with the personal attendance of the accused and at the same time he is having the power to enforce the accused to appear before the Court and measures prescribed in absence of complying the order the measures prescribed in the Cr.P.C. he can invoke.”

“There is no doubt that section 205 of Cr.P.C power is a discretionary power of the learned court however in the interest of justice and to avoid the unnecessary harassment upon the accused the learned court is further required to consider the said application in view of the several judgments which has been considered by this Court hereinabove.” Justice Dwivedi added.

“There is no doubt that the petitioner is a public figure and he is required to appear in the public with very caution and such loose word is not required to be used in such a manner by a person of stature like petitioner. This is only the opinion of the court and that observation is nothing to do with the merit of the case,” the Court opined while allowing the petition.

Gandhi had previously filed a petition before the lower court seeking exemption from appearing, however the court of magistrate Anamika Kisku had on May 3 rejected his petition, which was subsequently challenged by the Congress leader in the High Court.

Earlier this month, the Apex Court stayed Gandhi’s conviction in the Modi surname defamation case by a Gujarat court, whereby he was sentenced to two years in jail, following which he was automatically disqualified from the Lok Sabha as a Member of Parliament.

Case Title: Rahul Gandhi vs. The State of Jharkhand and one Another

Case Citation: 2023 LiveLaw (Jha) 26

Case No.: W.P.(Cr.) No. 302 of 2023

Counsels For the Petitioner : Mr. Kaushik Sarkhel, Advocate, Mr. Deepankar, Advocate., Mr. Abhishek Singh, Advocate

Counsel For the State : Mr. M.K. Roy, G.A.-I

Counsels For the Resp. No. 2 : Mr. Sarvendra Kumar, Advocate

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