MUMBAI: Finding no substance in their contention that they could not have deleted chats from cell phones in the presence of 22 policemen present for a search, the Bombay high court on Saturday dismissed two petitions, one filed by Shilpa Shetty’s husband Raj Kundra and the other by co-accused Ryan Thorpe, challenging the legality of their arrests and remand.
Police had arrested Kundra and Thorpe on July 19 in a February 2021 case of alleged “production and streaming of pornographic content” via two apps.
Justice Ajay Gadkari said their arrest and remand orders by the Esplanade court additional chief metropolitan magistrate S B Bhajipale were lawful. The HC said police had recorded satisfaction that arrest was necessitated and the magistrate had perused the case diary and expressed his satisfaction that custodial interrogation was needed. The magistrate’s order may not be elaborate, to the duo’s expectation, but the HC said it meets with the legal mandate.
The duo said mandatory provisions regarding arrest were flouted by police, and since arrest was “illegal,” the magistrate could not have remanded them in police or judicial custody. Public prosecutor Aruna Pai said the duo started deleting chats when a police team landed at Kundra’s office on July 19 to search the premises, hence destroying evidence, some of which, she said, was retrieved later. “Other data is being retrieved,” she said.
Senior counsel Aabad Ponda with advocate Hitesh Jain, appearing for Kundra, had questioned the police claim, saying neither was the deletion aspect mentioned in a panchanama nor in the first two remand applications. Besides, why would the police issue them a Section 41 A (1) notice “after” any such act of causing disappearance of evidence, they said. For Thorpe, counsel Abhinav Chandrachud and Subhash Jadhav argued police were required to give reasons for arrest, and they also refuted allegations of destruction of evidence on the day of arrest.
Ponda argued there was a violation of mandatory provisions under the criminal law regarding arrest and a two weeks’ notice as directed by Supreme Court in 2014. He had argued that since the crime attracted up to 7 years’ imprisonment, under Section 41A (1) a notice to seek Kundra’s appearance and explanation was mandated since an arrest leads to loss of reputation and anxiety.
The prosecution denied any such violation. It said such notice was issued to both and while Thorpe accepted it, Kundra had refused. The police affidavit said the two started deleting WhatsApp group and chats and to prevent them from further destruction of evidence, they were taken to the police station and arrested later that night.
The HC said it is clear that when arrested, their phones were with them. The HC said an affidavit on oath “has its own significance.” Kundra’s refusal to accept notice “clearly implies” he did not want to participate and cooperate in the investigation.