The Bombay High Court on Saturday dismissed pleas by businessman Raj Kundra and his associate Ryan Thorpe challenging their remand orders passed by the Magistrate Court in the adult films case and seeking release from custody.
“It would lead to a conclusion that the arrest of the petitioners and remand to custody by the metropolitan magistrate dated July 20 is within conformity of the provisions of law. The impugned order of the magistrate does not suffer any error which would require any interference by this court,” the HC held.
The court had reserved its verdict on August 2 in pleas by Kundra alleging that his arrest in the adult films case was illegal as he was not served any legal notice. Kundra and Thorpe have sought interim bail pending hearing of his plea seeking the case to be quashed.
A bench of Justice A S Gadkari was hearing Kundra’s plea, which stated that he has not been named in the FIR. It also alleged that as police were to search his office, he was directed to remain present at the crime branch office. The petition added that he was arrested without being served a notice, in violation of laws safeguarding a person from arrest when the offence carries less than seven years of imprisonment.
Mumbai Police, through chief public prosecutor Aruna Pai, continued its arguments and told the bench that as of now 68 pornographic movies have been seized from the accused along with material from personal laptops, mobile phones and 51 videos found on storage area network (SAN). The accused were enabling streaming porn on mobile phone applications, HotShots and Bollyfame, Pai had said.
She had added that Kundra and Thorpe had deleted incriminating content from their personal devices and as police could not be a “mute spectator” while the accused were destroying evidence, they were arrested to prevent the same.
Pai also said Kundra and Thorpe, his IT technician, were duly served a notice under Section 41A, mandating his appearance before a police officer to avoid unnecessary arrest under the Code of Criminal Procedure (CrPC). While Thorpe accepted the notice, Kundra had refused, she added.
Appearing for Kundra, senior advocate Aabad Ponda said the new charge — Section 201 (punishment for causing disappearance of evidence) under the Indian Penal Code — was added after a petition was filed as an “afterthought” without informing the accused.
Ponda denied the charges and said if Kundra had been deleting data, then it would have been mentioned in the panchanama or first remand, but that was not done. He said there was no material to show that he deleted data on the night of his arrest on July 19.
Ponda also said there were 22 police personnel when the arrest panchanama was recorded. “How is it that when Kundra was allegedly deleting the content, that not a single one of them noticed it at the relevant time and did not mention it in the panchanama?” Ponda questioned.
Advocate Abhinav Chandrachud, representing Thorpe, adopted Ponda’s arguments and said while his client had acknowledged the police notice, he was not given an opportunity to comply and, therefore, his arrest was illegal and sought relief from the court.
He added there were discrepancies in the prosecution’s case pertaining to the date of deletion of the videos.