Supreme Court Grants Anticipatory Bail To Raj Kundra In Pornography Case

A bench of Justices KM Joseph and BV Nagarathna, taking into consideration that the State of Maharashtra did not oppose the application for anticipatory bail filed by the Petitioner, allowed the application and ordered, "Common FIR's have generated applications seeking anticipatory bail. Anticipatory bail has been denied by the High Court. There were orders of interim protection however. We heard learned counsels. The learned counsel for the respondent state would take the following stand - chargesheets have been filed. All that is required is that in case the court is inclined to grant anticipatory bail it be made clear that the petitioners will cooperate if their presence becomes necessary. Having heard the parties, we say that these are cases where the petitioners should be allowed anticipatory bail subject to conditions imposed by the trial court. In case they are required in the future they should fully cooperate. The trial court should necessarily incorporate this as a condition."

Counsel appearing for the Petitioner argued that the application for anticipatory bail had been filed by the petitioner since the chargesheet had already been filed in the main case. It was further argued that the petitioner had already been released on regular bail in that case after 60 days of being in prison. It was submitted that there are several FIR's that have been filed arising out of the same movie. Separate FIRs have been filed by different people against the same movie. And so the petitioners seek anticipatory bail from the Hon'ble Court.

Justice Joseph inquired right at the start of the hearing, "Why should the court exercise its extraordinary jurisdiction in a matter like this?"

Counsel appearing for the petitioners submitted, "We are cooperating with the investigation. No complaint has ever been made that I am not co-operating. Chargesheet has also been filed."

At this point, Justice Joseph inquired from the Counsel appearing for the state of Maharashtra - "Do you intend to arrest them?"

Counsel appearing for the State of Maharashtra, while not opposing the application for anticipatory bail, submitted, "We want them to cooperate. That's it. As and when called we want them to come. If they are required to come to the police station they should come. I leave it to your lordships."

Immediately thereafter, the petitioners submitted, "There is no complaint that we have not cooperated until now."

It was further argued, "My lords have protected us all along. Custodial interrogation is also not needed anymore. We have cooperated all along. No complaints either that we have not cooperated."

Initially, while not being inclined to allow the application, the bench remarked, "You can go and seek regular bail. Surrender and appear before the court and seek regular bail."

Justice Joseph specifically remarked, "Is this the kind of case where we should exercise our power? What is the message that we are sending?"

Replying to the above, Counsel appearing for the petitioner sought the court's permission to submit arguments on merits and submitted, "There are two sections 67 & 67-A which have been pressed against me. They are two different offences. The allegation is that two ladies on an OTT platform have given videos which are obscene. Section 67 is bailable. Section 67-A will be attracted only if it is a 'sexually explicit act'. There is no such case that there is a sexually explicit act.Merely because an allegation has been made does not mean that there is a sexually explicit act"

Justice Nagarathna then remarked, "But it is a matter of trial if 67-A is there or not."

Counsel for the petitioners responded by stating, "I am only on the allegation my lords. 67 is a bailable offence. 67-A we need to specifically show sexually explicit act. Showing nudity does not mean sexually explicit act. So even on merits, no offence is made out under 67-A."

Submitting his argument on the aspect of parity, Counsel for the petitioners submitted, "On the question of parity also, two persons were running this company. The other has been released. I joined the company later on as a partner. The other person was granted anticipatory bail by the Sessions Court…It was not challenged."

Justice Joseph then inquired, "What will be the impact of this order on other cases."

Counsel responded by saying, "All other cases are over. Everyone has been granted regular bail."

Case title: Ripu Sudan v. State of Maharashtra SLP(Crl) No. 9860/2021

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