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Seven days after a Gujarat court convicted Rahul Gandhi for defamation over his “Modi surname” remark, a Patna court, on Thursday, 30 March, summoned him on 12 April over the same remark.
However, this fresh trouble for Gandhi is legally unsound, lawyers and ex-judges told The Quint.
“If he has already been convicted once for an offence, the second court cannot exercise its discretion to try him again."Former Rajasthan & Bombay High Courts’ Chief Justice Pradeep Nandarajog
What Happened in The Patna Case?
The Patna case dates back to April 2019, when BJP leader and Rajya Sabha MP from Bihar Sushil Kumar Modi had filed a criminal defamation complaint (under IPC Section 500, according to Congress sources) against Gandhi for reportedly saying:
“Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"
After Gandhi surrendered in the Patna MLA/MLC court, he was granted bail in the case in July 2019.
"Gandhi and his party believe in dynasty politics and cannot bear the sight of an OBC, Narendra Modi, in the Prime Minister's chair. They, therefore, routinely engage in slander. Only the judiciary can effectively check this tendency," Sushil Modi said on 30 March in a video statement.
"I am confident that like the court in Surat, the court here will hold him guilty and award adequate punishment", he added.
Quick recap: On 23 March, a court in Surat had sentenced Gandhi to two years in jail under IPC Sections 499 (defamation) and 500 (punishment for defamation). He was then granted bail to enable him to move an appeal against his conviction within 30 days.
The very next day (24 March), the embattled leader was disqualified from the Lok Sabha as an MP. He was also asked to vacate his government-allotted bungalow, following the disqualification.
In a previous piece for The Quint, legal experts had explained why this conviction too is concerning.
So, Why Is a Second Trial Legally Unsound?
According to the law, a person cannot be prosecuted twice for the same set of allegations since this leads to what is legally called “double jeopardy.”
Supreme Court lawyer Paras Nath Singh explained that the Indian Constitution grants protection from double jeopardy under:
1) Article 20 of the Constitution (Protection in respect of conviction for offences): “No person shall be prosecuted and punished for the same offence more than once,” reads sub-clause 2 of the article.
2) Section 300 in The Code of Criminal Procedure (CrPC): “A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence,” sub-clause (1) of the section reads.
What Have Courts Usually Done in the Past in Similar Cases?
The Supreme Court, in December 2022 (TP Gopalakrishnan vs State of Kerala) had affirmed that prosecuting a person twice for the same offence would amount to a violation of their fundamental rights:
“Prosecuting a person for the same offence in same series of facts, for which he has previously either been acquitted or has been convicted and undergone the punishment, affects the person’s right to live with dignity. Thus, the concept of double jeopardy can also be understood in terms of Article 21 of the Constitution of India.”
So, usually, when multiple FIRs are filed across courts in various states for the same offence, courts club and hear them together.
For example:
Responding to a petition filed by Republic TV editor-in-chief Arnab Goswami in 2020, on FIRs registered against him in various states in relation to a broadcast, the top court had observed, “Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action is a violation of fundamental rights."
Alt News co-founder Mohammed Zubair too had pleaded that if the Supreme Court does not reject the FIRs in the controversial tweets case against him, then they should be clubbed together and tried at one place, preferably in Delhi. The court had then agreed to this in July last year.
But first, for FIRs to be clubbed and heard together, the accused has to file a petition seeking the same. This relief can only be sought in the Supreme Court, since high courts do not have the power to order transfer of a criminal case from one state to another.
“Ideally, Gandhi should have sought the clubbing of all FIRs against him in connection with the Modi surname case,” Justice Nandarajog said.
Can He Do Anything Now?
Yes, since Gandhi did not apply for clubbing of all FIRs against him, he can still challenge the second trial at a higher court.
“He can and should challenge the fresh summons issued to him by the Patna court at a higher court. He should say, look, this court cannot go ahead with the trial because I have already been convicted for this,” Advocate Singh said.
In fact, the magistrate at the Patna court too should not have gone ahead with this, Justice Nandarajog pointed out.
“If I was the magistrate, I would have told the complainant that I will treat the FIR (which he has been convicted on) to be representative of all similar FIRs because the malice was not targeted towards an individual, the malice was targeted towards Modis as a whole and for that he has already been convicted, so that will suffice now,” he said.
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