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Senior Advocate Aabad Ponda while arguing bail plea of Raj Kundra in the alleged filming and telecasting of pornographic content told Bombay High Court that the arrest by Mumbai Police was against the provision of Section 41A, CrPC, 1973 as was in clear violation of the Supreme Court judgment in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

(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.)

The matter was heard by the bench Justice AS Gadkari.

The major contention of the learned Senior Advocate for Kundra rested on non-compliance with Section 41A CrPC;

“The law says that no immediate arrest if there is punishment 7 years or below after the amendment. The case is that they give notice after carrying a panchnama. Raj Kundra did not accept the notice u/s 41A CrPC.  The contention of the police is since Raj Kundra did not sign the notice u/s 41A CrPC, 1973 they arrested him.”

Relevance from Supreme Court order in Munawar Faruqui case was further drawn, where the Court recording non-compliance with Section 41 CrPC, 1973 had released the accused on ad-interim bail, subject to conditions by the Trial Court. Stay was granted on the production of warrants as well.

To this, the bench responded, “Munawar's case was not a final judgment but only an interim order by the Court based on facts & circumstances of the case.”

Learned Senior Counsel emphasized the corollaries between the two.

It was added that the conduct of police reflected a “Complete mockery of Arnesh Kumar judgment” and that “Section 41A compliance was only a show made by them, It was not fulfilled in letter and spirit”.

Section 41 CrPC empowers the Investigating Officer to arrest an accused without a warrant in a cognizable offence.

By way of amendment in 2010, such powers are restricted for offences with imprisonment for a term less than, or equal to 7 years. It is to be noted that the offence in the present case attracts a maximum punishment of 7 years.

With respect to arrest, Senior Advocate Ponda, submitted,

“Is it permissible for the police officer to arrest if the accused is not cooperating? Further is this a ground to grant remand?”

Reliance was placed on Arnesh Kumar Judgment, Para 11.6 and 11.7, which reads as follows,

“11.6 Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.”

Two broad points as argued by Counsel for Raj Kundra:

1. The punishment for the offenses is below 7 years, hence, the conduct of the police was not warranted. 

2. Assuming that they intended to arrest the accused, police should have followed the mandate laid down under section 41A(4) and filed an application with the magistrate.

Brief Submissions were made by Senior Advocate Abhinav Chandrachud for accused Ryan Thorpe,

"The case of my client is different since I accepted the notice. My case would fall under section 41A(3). Irrespective of the same, I was arrested. There should be some grounds to arrest. There is no case that my client destroyed evidence.  Moreover, there is a discrepancy in the 2nd remand report and the affidavit. The 2nd remand report mentions the destruction of evidence in Feb 2021 whereas the affidavit is silent on the same. The only allegation is that I used to make inquiries and ask about this HotShot App.”

Matter has been adjourned for Saturday.

The present development comes in right after the rejection of their Bail plea, yesterday, by Additional Chief Metropolitan Magistrate, 37th Court Esplanade, Mumbai, observing that “The effect of the alleged offense is having nexus with the public at large. The alleged offense is also detrimental to the health of society. In such circumstances, societal interest in the prosecution of a crime that has a wider social dimension cannot be overlooked. At present, an investigation is in progress. In such circumstances, at this stage release of the accused will definitely hamper an investigation.”
 

Case Title: Ryan John Michael Thorpe V. The State Of Maharashtra & Ripu Sudan Balkrishan Kundra Alia Raj Kundra V. State Of Maharashtra

Also Read: Raj Kundra moves Bombay High Court: Critical legal points raised in porn films/app case