MUMBAI: The Bombay high court on Saturday rejected businessman Raj Kundra’s challenge to his “illegal” arrest and remand in connection with a case of allegedly “production and streaming of pornographic content” via apps, and reserved his plea for orders.
The HC also rejected a similar petition filed by co-accused Ryan Thorpe.
Kundra’s contention was that there was a violation of mandatory provisions under the criminal law regarding arrest of first issuing a notice under Section 41A CrPC, seeking his appearance and explanation before the police, since the offences invoked attract maximum seven years’ imprisonment. The prosecution denied any such violation.
Justice Ajay Gadkari of the HC while pronouncing the dismissal of their petitions said that their arrest on July 19 and remand are in conformity with provisions of law.
Under Criminal Procedure Code (CrPC) section 41A (1) is a provision to seek appearance of a suspect before the police station for an explanation when intention is not to arrest immediately, in cases where the offence attracts up to 7 years’ imprisonment.
The first remand was on July 20 before additional chief metropolitan magistrate at Esplanade Court SB Bhajipale. The second remand also to police custody was on July 23, and on July 27 the Esplanade court had sent him to judicial custody. The magistrate rejected his bail plea on July 29.
He has separately challenged the bail rejection before the Sessions court.
Public prosecutor Aruna Pai had submitted an affidavit of the police before the HC in reply to their petitions. The affidavit said that when they went to search Kundra’s office on July 19, the accused began deleting WhatsApp groups and chat texts, hence destroying evidence. Pai had informed the HC that police had later added destruction of evidence as another offence on them.
At the last HC hearing on August 2, senior counsel Aabad Ponda with advocate Subhash Jadhav appearing for Kundra said that the police contention was “ridiculous” and an “afterthought” as the punchnama was silent on any such destruction or deletion of chats on the day of the search and so were the first two remand applications of the police.
“It does not change the position that there is no record of deletion (on July 19),” Ponda had argued. He had also cited Supreme Court orders to argue that mandatory procedure in arrest must be followed and a May order of the Chief Justice of India’s bench to argue that especially in the Covid-19 pandemic, the provisions must be followed.
Pai, opposing Kundra’s plea, however, had added that more videos were found by the police on two apps which were “obscene and bold films”. She said the police had served Kundra and his co-accused Ryan Thorpe the section 41A notice under CrPC. She said while Thorpe accepted the notice, Kundra had refused and police arrested him for non cooperation and for deleting data.
Ponda had argued that if a notice, as police say, was not accepted, the provision in law which they ought to have followed was then section 41A (4) which required them to seek court’s permission for any arrest. The police did not do that, he had argued.
Ponda had argued that the case of the police was “completely falsified’’ as “apparently the mobile is taken charge of in the punchnama.” He said the seizure record will show his “mobile is in custody of the police. This can be discerned from common sense as well as a bare perusal of the items seized on 19.07.2021. ” He said from Kundra, two hard disks, 1 laptop and 1 mobile phone were taken under the punchnama. “If this is so, then necessarily, the Petitioner (Kundra) cannot delete data or WhatsApp groups or WhatsApp chats,” said Ponda, who was assisted by advocate Subhash Jadhav.
In the second remand, reference was to alleged deletion made in February and prior, in June and November 2020, he said.
Even Thorpe’s counsel Abhinav Chandrachud argued that the second remand never mentioned any July 19 “deletion” but to a prior “February 2021″ attempt.