Accused Can't Indulge in Destruction Of Evidence After Service of 41A Notice : Bombay High Court In Raj Kundra's Case

"…After service of notice under Section 41A of Cr.P.C., what is expected under the law from the accused is to co-operate in the process of investigation and not to indulge in destruction of incriminating material/evidence against him/her, which the investigating agency intends to seize or to take it into its custody for the purpose of investigation of a crime."

Justice AS Gadkari on Saturday upheld the legality of Kundra's arrest and the Chief Metropolitan Magistrate's orders remanding him in custody.

The court rejected the defence's contentions that Kundra was served a 41A CrPC notice only as a formality, that his arrest was illegal, and the Chief Metropolitan Magistrate endorsed that illegality by remanding him in custody.

It held that the investigating officer had recorded his satisfaction which necessitated Kundra's arrest and the Magistrate has perused the case diary while remanding Kundra and Thorpe to custody.

"The satisfaction recorded by the Magistrate in the impugned Order, may not be elaborate as per the expectation of the Petitioners but according to this court, it complies with the direction in the case of Arnesh Kumar (Supra). The fact that, the learned Magistrate has perused case diary and other record can be discerned from the fact that, he has signed the case diary after its perusal."

The court accepted state counsel Chief PP Aruna Pai's contention that after Kundra refused to accept the 41A notice under CrPC, the police were compelled to arrest him as he and co-accused Ryan Thorpe began deleting data from their phones.

The prosecution alleged that a 41A notice was served, but investigators could not be mute spectators if the accused were destroying evidence.

Senior Advocate Aabad Ponda, appearing for Kundra, had argued that even if he had refused to accept the 41A notice as alleged by the police, the prosecution was expected to seek the court's permission under S.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. There was no document/panchnama to show that evidence was destroyed before the arrest. "Excuse given for arresting was not tenable in law," he submitted.

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.

According to the two remand applications, Kundra's company, ArmsPrime Media Ltd. had developed and sold 'Hotshots App' to another UK based company 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.

Click here to read/download the order