Read Time: 10 minutes

The Bombay High Court today asked the counsel representing Raj Kundra to go before a regular court as there seemed no urgency in the case.

The Single Bench of Justice A.S. Gadkari while hearing the Senior Advocate Aabad Ponda representing Kundra asked,

“What is so grave urgency that I should hear your matter on production board keeping my regular board aside? Please go before the regular court. It is sitting after 2 days.”

To this, the Senior Advocate replied, “If that is the case we will wait for regular board to get over and take our chance at the end of the board.”

Senior Advocate Ponda further appraised that, "Raj kundra has been remanded to judicial custody today and we have preferred a bail application before Magistrate. If high court is not inclined to hear the matter today than it may observe that there will be no impediment before the magistrate to hear the bail application as the high court petition is purely on sec 41A CrPC and illegal remand.”

Bench assured that it will not pass any such order. Instead, could simply adjourn the matter to Thursday.

“In that case then I will like to take my chance at the end of board,” said Senior Advocate Ponda

It must be noted that, Businessman Raj Kundra had moved 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 was to be in police custody till July 27. On Tuesday, the Magistrate further extended the Judicial Custody for 14 days.

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.

In his petition, Kundra submitted,

“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 the above case, Justice Shinde had 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.  

Kundra had 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.

 

Case Title: Ripu Sudan Balkishan Kundra Alias Raj Kundra v State of Maharashtra, 2021