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The Bombay High Court on Saturday dismissed Businessman and  Actor Shilpa Shetty's husband Raj Kundra's plea challenging the Metropolitan Magistrate's  remand order in an alleged Porn film Case.

The order was passed by Justice AS Gadkari who observed that "Remand to custody by magistrate is within conformity of law and does not require interference." 

Kundra had challenged the  remand order dated July 20, 2021 passed by the Additional Chief Metropolitan Magistrate, Esplanande , Mumbai remanding Mr. Kundra in Police custody till July, 23, 2021 which was subsequently extended till July 27.

 On July 28 the Additional Chief Metropolitan Magistrate, 37^th Court Esplanade, Mumbai, rejected Bail Application of Businessman, Kundra and Ryan John Michael Thorpe, accused(s) in the alleged filming and publication of Pornographic films.

The petition filed on behalf of Mr. Kundra, raises some very interesting legal ponits which are mentioned below.

Article 227 vs. Article 226

Mr. Kundra has moved the Bombay High Court invoking itsjurisdiction under Article 227 of the Indian Constitution rather than Article 226. He relied upon the Supreme Court ruling in Naresh Shridhar Mirajkar & Ors Vs. State of Maharashtra & Anr [1966 SCR (3) 744] as his plea challenges judicial order passed by a competent court which are not amenable to Writ jurisdiction under Article 226 of the Constitution of India, as been held in this judicial decision. 

Mr. Kundra's Arrest – legal or illegal

According to Mr. Kundra's submissions before the Court, he has been arrested without following the due process of law under the provisions of Section 41A of the Code of Criminal Procedure, 1973, as mandated by the Hon’ble Supreme Court from time and time. He has submitted that he was arrested under the garb ofbeing called at the Crime Branch office for recording statementin the ongoing case. Mr. Kundra has also alleged that he was not named in the F.I.R. initially. 

As the charges, that Mr. Kundra has been charged with, even if proven applicable, will cumulatively result in maximum punishment of 7 years and according to the well established rule by the Supreme Court, in such cases, it is completely illegal to arrest the said person/accused without complying with the requirements of Sections 41(1)(b) and Section 41A of the Cr.P.C.

Mr. Kundra has relied upon the Supreme court judgement in Arnesh Kumar Vs. The State of Bihar [(2014) 8 SCC 273] to support his contention.

He has further stated that in the matter where FIR is registered approximately 2 months before , the Charge sheet is filed, the authorities could have easily served notice and could have allowed him to appear and give his statement and if the he failed to do so the consequences would had followed. However, if hedid appear then under Section 41A (3), he should not be arrested at all, is the mandate of law. The same is in consonance of the well settled principles of Joginder Kumar Vs. State of Uttar Pradesh, [(1994) 4 SCC 260].

Lastly Mr. Kundra through his counsels has raised a very significant argument assailing his remand order. 

As Mr. Kundra has become a public personality, in publicdomain his case is being discussed as a case related with pornographic offences.

However, in his petition Mr. Kundra has averred that, even if any of the his actions constitute any offence, they would not come under the purview of Section 67A of the Information Technology Act, 2000. 

SECTION 67 OR SECTION 67A, The Information Technology Act, 2000

In his petition ,Mr. Kundra submits,

“The Learned Magistrate further failed to consider that Section 67A of IT Act can never apply to the present case much less the case of the petitioner.  If the entire material that they speak of is considered, it is clear that the same does not depict direct explicit sexual acts and sexual intercourse but shows only material in the form of short movies which are lascivious or appeal to the prurient interest of the persons at best. Assuming the case of the prosecution to be true, the same falls within the foray of Section 67 and not Section 67A of the Information Technology Act, 2000. The aforesaid Section is punishable up to three years and as per the provisions of Sections 77 or 79 of IT Act is a bailable offence.”

He has placed his Reliance on this distinction laid down succinctly by  Justice Sandeep K. Shinde of the Bombay High Court in the  case  of Pramod  Anand The  State  of  Maharashtra, 2021.

In this case, Justice Shinde held that to attract Section 67-A of the IT Act, material must be of the nature describing or representing sexual activity in a direct or detailed way.Whereas, in the present case it has been alleged that the website in concern, delivers only short movies not any direct pornographic material.  

Therefore, Mr. Kundra has filed the present petition urging the High Court to set aside the remand order as well as quash the proceedings against him stating that the learned Magistrate has grossly erred in his decision of granting remand at multiple levels.

Mr. Kundra has been booked under Sections 354(c), 292, 293, 420, r/w 34 of the Indian Penal Code, Section 66(E), 67 & 67A of the Information Technology Act, 2000 and Sections 2(g), 3, 4, 6 & 7 of the Indecent Representation of Women (Prohibition) Act, 1986.

 

Case Title: Ripu Suan Balkrishan Kundra Alias Raj kundra vs The State of Maharashtra