'No Explicit Sexual Acts Shown' : Raj Kundra Moves Bombay High Court Challenging Police Custody In Porn Film Case

Kundra is booked under sections 354(C) (Voyeurism), 292 (sale of obscene content), 420(cheating) of the IPC and Sections 67, 67A (transmission of sexually explicit material) of the IT Act and the Indecent Representation of Women (Prohibition) Act.

The petition filed under Article 227 of the Constitution seeks to quash the order passed by the Chief Metropolitan Magistrate on July 20 remanding Kunda to police custody. The plea states that his arrest by the Mumbai Police is illegal as he was not issued a proper notice of appearance under Section 41A of the CrPC. Rather, it is alleged that Kundra was arrested under the grab of recording statement.

"Notice in the matter where FIR is registered on 05.02.2021, the Charge sheet is filed on 03.04.2021 and they could have easily served notice and could have allowed the Petitioner to appear and give his statement and if the Petitioner failed to do so the consequences would had followed. However, if the Petitioner did appear then under Section 41A (3), he should not be arrested at all, is the mandate of law," the plea avers.

In this backdrop it is argued that the concerned Chief Metropolitan Magistrate erred in remanding Kundra to police custody.

It is further alleged that the CMM failed to consider that that the police have wrongly invoked provisions of the penal code in the matter relating to the case of alleged use of the electronic means where Information Technology Act applies.

The plea further states that the impugned content 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.

Thus, even assuming the case of the prosecution to be true, the same falls within the foray of Section 67— a bailable offence and not Section 67A of the Information Technology Act, 2000.

"The Petitioner submits that in light of the aforesaid, the order of remand dated 20.07.2021 and subsequent orders following the said order of remand are completely illegal and against the mandatory provisions of Section 41A of Cr.P.C", the plea reads.

Petition is filed through Parinam Law Associates.