The Bombay High Court, on Monday, reserved its order in a petition filed by Raj Kundra, challenging his arrest as ‘illegal’, in a case related to the alleged creation and streaming of pornographic content on digital applications. Justice AS Gadkari has also reserved the order in a petition filed by Kundra’s IT head Ryan Thorpe, which challenged his arrest.
Kundra and Thorpe have contended that their arrests are ‘illegal’ as the police failed to follow proper procedure under section 41A of the Criminal Procedure Code (CrPC). They have sought immediate release and quashing of the orders remanding them to police custody. As per section 41A, the police may, in cases where arrest is not warranted, issue summons to the accused person and record his or her statement. Kundra was arrested on July 19, following a search at his office. Thorpe was arrested the following day. They are now in judicial custody.
Public prosecutor Aruna Pai emphasised that they were arrested as they began deleting evidence from their phones when the search was underway at Kundra’s office. She further argued that the notice under section 41A was issued to both the accused. She said, “Kundra refused to accept it, whereas Thorpe accepted it.”
Pointing out Kundra’s conduct, Pai argued that he refused to cooperate with the investigation. “We don’t know if it is all deleted. Investigation is underway. The police are trying to retrieve it,” said Pai.
She argued that, as a result, section 201 (destruction of evidence) of the Indian Penal Code was subsequently invoked against the two. “If the accused persons are destroying evidence, can the investigating agency be a mute spectator?” she questioned.
Pai added, “Kundra is the admin of the application HotShots. During searches at Kundra’s office, the police seized a laptop from which 68 porn videos were recovered. This is in addition to the earlier 51 videos recovered from the storage area network.”
The police also recovered scripts with sexual content and a presentation on the financial projection and marketing strategy of HotShots and another similar application BollyFame from Kundra’s laptop.
Kundra’s counsel Aabad Ponda refuted the allegations and said that all his devices, including his phone and laptops, were seized by the police during the search. If they were already seized, there is no question of Kundra deleting evidence as claimed by the police.
Abhinav Chandrachud, counsel for Thorpe, argued that while the 41A notice was issued to Thorpe, he was not given time to comply or respond to it. “Before Thorpe could act on the notice, he was arrested,” he said.
Chandrachud also pointed out discrepancies in the remand report and the affidavit filed by the police, which cast aspersions on the prosecution’s case.
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