Why only stay instead of quashing the case?

KT NEWS SERVICE. Dated: 8/7/2023 6:46:23 AM

Rahul Gandhi disqualification from Lok Sabha case

NEW DELHI, August 6: The Supreme Court on Friday did not quash the defamation case against Rahul Gandhi, but only stayed it since his appeal against the trial court judgment is still pending before the Sessions Court of Surat. Stay means no finality in the case so far as the case will be heard further by the sessions court as well as the Supreme Court

However, his disqualification will remain in abeyance until the appeal process is concluded, the lawyers said.

All the same, Rahul gets advantage of a 2018 decision in the Lok Prahari vs Union of India. The apex court had clarified that the disqualification "will not operate from the date of the stay of conviction by the appellate court." As such, the stay is as good as dismissal of all related consequences arising from the judgment.

In its 4-page order, the Bench headed by Justice B R Gavai refrained from observing anything on the arguments advanced by Dr Abhishek Manu Singhvi on behalf of Rahul and senior advocate Mahesh Jethmalani on behalf of Purnesh Modi, lest it adversely affect the rights of either of the parties in the appeal pending before the learned Appellate Court of Surat.

The Bench observed that the order of conviction needs to be stayed, pending hearing of the present appeal. "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," the Bench ruled, asking both sides to approach the Appellate court for expeditious disposal of the appeal.

Here are relevant paragraphs from the order:

-- 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.

-- 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.

-- 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.

-- 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 life but also affect the right of the electorate, who have elected him, to represent their constituency.

-- Since no reasons have been given by the learned Trial Judge for imposing the maximum sentence whichhas 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. We, therefore, stay the order of conviction during the pendency of the present appeal.

-- 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.



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