Pornography Racket Case: Bombay High Court Reserves Judgement On Raj Kundra's Plea Challenging Remand Orders

The petitions essentially raise the issue of non-compliance of Section 41 A of the Criminal Procedure Code, which deals with a notice to appear before the investigating officer.

During the hearing before Justice AS Gadkari on Monday, the prosecution argued that they could not be expected to be a mute spectator if the accused were destroying evidence.

However, Kundra and Thorpe's lawyers responded by saying that the notice under section 41A was served after the police had seized all the equipments, which meant there was no scope for deleting anything from them.

Senior Advocate Aabad Ponda, appearing for Kundra, argued that even if he had refused to accept the notice under section 41A of the CrPC, the prosecution should have sought permission from the court before arresting him in compliance with section 41A (4) of the CrPC.

He claimed that while the arrest and seizures happened on July 19, the charge pertaining to the destruction of evidence was added only on July 23, and that there was no document/panchnama to show that evidence was being destroyed before the arrest. "Excuse given for arresting was not tenable in law," he submitted.

Advocate Abhinav Chandrachud, appearing for Thorpe, also submitted that there was discrepancy in the investigating agency's claim which did not justify arrest. He argued that he was arrested despite accepting the 41A notice. "Their case before the Magistrate was not that I was destroying evidence, it was that I was involved," he argued.

Chief Public Prosecutor Aruna Pai cited a judgment of the Supreme Court from 2018 (State of Maharashtra v. Tasneem Rizwan Siddiquee) where the apex court had dismissed a habeas corpus petition challenging the arrest of the accused after having served a notice under 41A.

She also pointed out that more video clips have been recovered from Kundra's laptop, submitting that while the number of videos from the SAN network in Kundra's Andheri West office was 51, another 68 clips were recovered from his laptop. Pai claimed that Kundra held a British passport and Aadhar Card.

Ponda, in response, argued that the Supreme Court's order did not stop anyone claiming illegal arrest from approaching the court. "I cannot go back to the same court and say please recall the order," he submitted.

"Also, what is there to show deletion? What is there in the remand and panchnama to show the circumstance of deletion? There has to be an addition of a charge,"  he argued.

Kundra and Thorpe were arrested by the Mumbai Police's Crime Branch on July 19, 2021 and booked under sections 354(C) (Voyeurism), 292 (sale of obscene content), 420(cheating), 201 (destruction of evidence) of the IPC and Sections 67, 67A (transmission of sexually explicit material) of the IT Act and the Indecent Representation of Women (Prohibition) Act.

They are both in judicial custody now.

According to the two remand applications, Kundra's company, Arms Prime Media Ltd. had developed and sold 'Hotshots App' to another UK based complany called Kenrin Pvt Ltd, which Kundra's relative Pradip Bakshi owns, "to earn money by streaming porn content on social media."

The police claimed that Kundra's active role was revealed as employees of his company known as Viaan Industries maintained the 'Hotshots App' and got remuneration from Kenrin Pvt Ltd.