Bombay High Court Dismisses Raj Kundra's Plea Challenging his Remand Order in Porn Racket Case

The Bombay High Court on Saturday dismissed the petitions filed by  Raj Kundra and his associate Ryan Thorpe challenging remand orders passed by the Metropolitan Magistrate in the alleged porn film racket, therefore seeking release from custody.

Justice AS Gadkari, while pronounced the order, said: "the remand to custody by the Metropolitan Magistrate is within conformity of law and does not require any interference."

The petitions essentially alleged illegal arrest for non-compliance of Section 41 A of the Criminal Procedure Code, which deals with a notice to appear before the investigating officer when an accused is booked for offences punishable with up to seven years imprisonment.

While Kundra claimed he was given the notice only as a formality and arrested soon after, Thorpe said he was arrested despite accepting the notice and cooperating with investigators.

In this backdrop, the concerned Chief Metropolitan Magistrate erred in remanding them to police custody on July 19 and subsequently, the pleas filed under Articles 227 and 482 of the CrPC state.

The prosecution alleged that a 41A notice was served, but investigators could not be mute spectators 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 equipment, which meant there was no scope for deleting anything.

Senior Advocate Aabad Ponda, appearing for Kundra, 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 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. 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.

Advocate Abhinav Chandrachud, appearing for Thorpe, also pointed out discrepancies in the investigating agency's claim, which did not justify an arrest. "Their case before the Magistrate was not that I was destroying evidence, it was that I was involved," he argued.

Ponda and Chandrachud relied heavily on Arnesh Kumar's judgement which lays down guidelines for arrest.

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.

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.

Thorpe was Hotshots App's IT head.

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

Click here to read/download the order