Raj Kundra moves Bombay High Court challenging police custody in porn films/apps case

Businessman Raj Kundra has approached the Bombay High Court challenging his “illegal” arrest in the case of creation of pornographic films and publishing them through apps.

Mumbai police had arrested Kundra on July 19 and he is in police custody till July 27.

The complaint was registered 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.

It is pertinent to note that in the said F.I.R. a Charge Sheet had been filed on 03.04.2021 before the Learned Additional Chief Metropolitan Magistrate, Court at Esplanade.

The Petitioner submitted that, on 19.07.2021 at around 4.00 pm, the Respondent carried out search at the office premises of the Petitioner and pursuant to their search the Respondent requested the Petitioner to accompany to their Byculla, Crime Branch office for recording his statement.

The Plea further averred that,

“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, the Respondent arrested the Petitioner by calling him under the grab of recording statement.”

Challenging the July 20 order of the magistrate remanding him to police custody, Kundra’s petition reads that it was in complete violation of provisions of law as serving a notice under section 41A of the CrPC was mandatory particularly in view of the COVID-19 pandemic.

His petition states that he was “deeply aggrieved by the illegal arrest which is in complete violation of the mandate of Section 41A of the Criminal Procedure Code (CrPC).”

Countering police’s claim, Kundra’s petition states that if the material produced by the police is viewed then it will be clear that the same does not “depict direct explicit sexual acts and sexual intercourse but shows material in the form of short movies which are lascivious or appeal to the prurient interest of persons at best”.

Kundra has challenged the order of magistrate on following grounds –

• The Learned Magistrate failed to appreciate that maximum punishment that can be fetched for the offences that are charged cumulatively, assuming for the sake of argument that they are applicable without admitting the same, is up to 7 years.

“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. It is laid down in the judgement of Arnesh Kumar Vs. The State of Bihar [(2014) 8 SCC 273], that if the arrest is contrary to the provisions of Sections 41(1)(b) and 41A of the Cr.P.C., then the arrest is necessarily illegal, and the duty cast upon the Learned Magistrate is not to remand the Petitioner and to forthwith release the person/accused on bail.”

• The current COVID regime is of importance and significance because the Honourable Chief Justice of India Mr. Justice Ramana’s three Judge bench judgement of In Re: Contagion of Covid-19 Virus in Prisons judgement lays down that no arrest can be made in violation of Arnesh Kumar (supra) principles.
• The Learned Magistrate erred in remanding the Petitioner to police custody in utter breach/ violation of the directions of the highest court of the country in the above three judgements which are binding not only on the police but on all Subordinate Courts.

According to police, Kundra is a "key conspirator" in the racket, and they have found various foreign transaction of his company with the company uploading pornographic content from a foreign IP address in London. The police claimed that Kundra owned an app called 'Hotshot' that created pornographic content. Later the application was sold to UK based accused Pradeep Bakshi, allegedly Kundra's relative. However, Kundra still called the shots.