Thread by @barandbench

#BombayHighCourt to continue hearing the plea by businessman #RajKundra assailing his remand and custody and all subsequent orders of the Magistrate Court in relation to the pornographic film racket case.

Hearing before Justice AS Gadkari.

@TheRajKundra
@MumbaiPolice

In an earlier hearing, the Court asked the Mumbai Police to submit details of the notice issued to Kundra under Section 41A of CrPC.

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Kundra’s bail application was rejected by the Chief Metropolitan Magistrate on July 28, 2021.

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Sr Adv Aabad Ponda will appear for Kundra, instructed by Parinam Law Associates.

Chief Public Prosecutor Aruna Pai will appear for the Mumbai Police.

#RajKundra #BombayHighCourt

Hearing begins.

#RajKundra #BombayHighCourt

Sr Adv Aabad Ponda begins submissions.

This petition seeks to invoke parent jurisdiction of this court. Challenges an order which is interlocutory, as it cannot before same court, review…
This is my only remedy.

#RajKundra #BombayHighCourt

Ponda: The police admittedly did not want to arrest us as per their own contention. They issued a notice under Section 41A of CrPC as per their submission and affidavit.

#RajKundra #BombayHighCourt

Ponda: Section 41A states that the notice is to be issued only when there is no co-operation.

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Ponda: FIR is registered on February 2021, Chargesheet in April 2021.
Search warrant is taken from Magistrate on July 19, 2021. The search is conducted and panchnama is carried out.

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Ponda: the offences alleged, there is no dispute to that in the affidavit also, the maximum punishment is 7 years.
As per the provision, if there is non co-operation, then arrest is to be made.

#RajKundra #BombayHighCourt

Ponda: They say that the notice was given and I refused to sign it. But I said, you cannot create a camouflage of Section 41A.
Ryan Thorpe (IT personnel) took the notice.

#RajKundra #BombayHighCourt

Ponda: Now there is no question of giving me the notice and then saying I need not be arrested.

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Ponda: Ripu Sudan refused to take it and sign and so they say they arrested. While Thorpe signed and took and even then they arrested him.

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Ponda reads out Section 41A of CrPC.

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Court: but subsection 3 provides for arrest.

Ponda: Yes but that also says I have to appear and continue to appear. But I should appear once..

#RajKundra #BombayHighCourt

Ponda: their remand and affidavit, it is not in dispute that they have come to a conclusion that arrest is required.

Court: Arrested when?

Ponda: The raid was conducted on July 19, and then they arrested me.

#RajKundra #BombayHighCourt

Ponda: When the search was being conducted, me and the other accused did not run away. We stood there.

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Ponda: I am only reading the relevant portion of remand.
Arrested at 10.15 pm.

#RajKundra #BombayHighCourt

Ponda is reading the remand application of #MumbaiPolice which is Marathi.

#RajKundra #BombayHighCourt

Ponda: All they say is we searched, we gave 41 A notice to them. One signed, one did not. The police act under 41 A when they don’t want to arrest.
No where in this remand do they say that I or my co-accused tried to destroy evidence or WhatsApp messages.

#RajKundra #BombayHC

Ponda: The second remand application also has the same story. Why I am emphasising is probably realising that 41A notice was issued..
In the affidavit today they submitted that I tried to destroy evidence and delete messages.

#RajKundra #BombayHighCourt

Court: Which document will have more evidentiary value? Remand application or affidavit?
I am asking you as an officer of the court not for your client.

Ponda submits that the relevant document right after the incident has more value.

#RajKundra #BombayHighCourt

Court: So then this is contrary to what the SC has held, that remand note is not conclusive evidence but the affidavits etc.

Ponda: I am not on conclusive evidence here.. but I beg to disagree..

Court: Ok henceforth I will not interrupt with you questions.

#BombayHC

Ponda: What I am saying is was this averment of destruction of evidence given before the magistrate during remand? The answer is emphatic NO!

Ponda proceeds to show the judgment in Arnesh Kumar case.

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Ponda reads: indiankanoon.org/doc/2982624/

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Reads further.

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Ponda: Assuming I did not sign the notice and I disrespected him, they must go back to the magistrate before arresting me.

#BombayHighCourt #RajKundra

Ponda: Assuming for the sake of argument that I have refused to sign a 41A notice, the officer was obliged to follow the 41A(4) and go to the magistrate and tell him and seek his permission for arrest.

#BombayHighCourt #RajKundra

Ponda: there was complete non-compliance of Section 41A. Here there is nothing done. They come, raid and arrest.
First you say you don’t want to arrest and then you do.
The man who accepted the notice also you arrest.

#BombayHighCourt #RajKundra

Ponda: The institution of notice was July 19, if not 2 weeks, they could have given me 2 days at least.
You tell a person, I don’t want to arrest you and then you arrest that person at 10.15 pm.
They made a mockery of Arnesh Kumar.

#BombayHighCourt #RajKundra

Court: Have you taken these grounds in your petition?

Ponda: Very much so.

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Ponda: Under Section 41A(1) when a person does not want to arrest you this is followed. This is different from 41(1).

#BombayHighCourt #RajKundra

Ponda: The officer tells us that they do not want to arrest me.. Please read Section 57 of the CrPC (person arrested not to be detained more than twenty-four hours when arrest without warrant).

Please read this is 167(1) of CrPC.

#BombayHighCourt #RajKundra

Ponda: They can interrogate a man for upto 24 hours without arrest..

Court: But Section 57 is only for production. Please do not give ideas to the police. Though they are doing it routinely.. Don’t give ideas (laughs).

#BombayHighCourt #RajKundra

Ponda: I took note. I will withdraw this.

#BombayHighCourt #RajKundra

Ponda: Please see my opposition and then how they dealt with that opposition.

#BombayHighCourt #RajKundra

Court: What about Section 167.. ?

Ponda: In my case, to try to give Sectin 41A is only a show made by them. They showed me the notice and arrested me at 1.15pm. They could have given me atleast one day to appear.
That would have been compliance of Arnesh Kumar and Re: Contagion

Ponda: they could have given me 2 weeks time, I could have appeared anytime.

#BombayHighCourt #RajKundra

Ponda: I showed the magistrate the principles of Arnesh Kumar, Re contagion, that the offences punishable with less than 7 years. Same thing which I argued here, I argued there.

#BombayHighCourt #RajKundra

Ponda seeks ad-interim relief.

Court: Without hearing other side I will not draw a conclusion. And not give ad-interim relief.
Supreme Court may do it, but there are limitations on other courts.

Ponda: This is also a constitutional court. And I do not have alternate remedy.

Ponda cites judgments of Munawar Farooqui and Dr Rini Johar v. State of MP.

#BombayHighCourt #RajKundra

Ponda: The main issue is this is admittedly a maximum 7 year punishment.
Assuming for arguments that it is made out they could not arrest me immediately. Give me a chance to appear before police station. Give me that chance to appear. Even if I refuse approach magistrate.

Ponda: The chargesheet is filed in April, I am not named. Assuming you find something in July, your two week time starts then.

#BombayHighCourt #RajKundra

Ponda: Section 41A is only provision which state has applied and I have applied ad-idem.
Both of us are saying so, as 41(1) is not resorted to by police.

Unless the date returnable and opportunity given to me, my contention is ..

Court: But you did not accept the notice.

Ponda: But I did not acknowledge.

Court: If you refuse to accept, then how can you know the date, time and place.

Ponda: If I refuse to accept is it not 41A (4).

#BombayHighCourt #RajKundra

Ponda: A man who was not present, comes when called, then he remains present during the raid, then they arrest him. His co-accused who accepted the notice was also arrested. That was a show.

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Court: Section 41A(3) says they can arrest, you accept or not..

Ponda: If I appear.. It says I continue to appear..

Court: When you do not accept the notice, then they arrested you.

#BombayHighCourt #RajKundra

Ponda: When a person complies and continues to comply..
Where is the tearing hurry? Give them 2 weeks. That is what I am saying.
It is my case that it was an after thought. That we served you. I was never given a 41.

#BombayHighCourt #RajKundra

Ponda: And if I refuse then they have to go to court. They cannot arrest on their own.

#BombayHighCourt #RajKundra

Ponda: And milords is seeing the provisions, trying to see hat happened. The learned magistrate said in one sentence that everything is fine, when I pointed out the Arnesh Kumar guidelines..

Court: So I will read out what I jotted down. So I will

Police never gave notice under 41A.
It is an afterthought.
41(4) not complied with.
Order under 41(4) not taken.

Ponda: and I was arrested without intention of arrest.

Court: yes I have that.

Ponda: They have not waited for the compliance or non-compliance of notice under 41A. Refusing to comply with notice is no reason to arrest me, definitely not for this section. I will show from the IPC.

Court: Now they will apply, you are giving them idea.

Ponda: I don’t mind sir! They cannot arrest me in a bailable offence when there is breach of 41.

Ponda: These are my submissions in brief.

Adv Abhinav Chandrachud makes submissions on behalf of Ryan Thorpe - who is the IT person in Kundra’s company.

Chandrachud: My case is on a slightly better footing. I have complied with the notice. So what applies to me is 41A(3).

Chandrachud: In the first remand report there were some references about me.

Chandrachud reads the second remand application (in Marathi)

#BombayHighCourt

Chandrachud: There is no evidence that he destroyed the report under 41A, plus there was compliance of the notice.

#BombayHighCourt #RajKundra

Court: Your submission is that the petitioner destroyed in February 2021, and not after notice.

Chandrachud: That is of course the police’s case. Our case is we have not destroyed any evidence, either before or after.

#BombayHighCourt #RajKundra

Chandrachud: My case is that I was not given time to appear before the police and place forth my case.
There is important discrepancy in the second remand report and the affidavit.

#BombayHighCourt #RajKundra

Chandrachud submits that there is only vague references to the petitioner in the first remand, that he was providing only technical support.

He concludes his arguments.

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Court: APP can we hear you tomorrow? But I am not sitting tomorrow. Then we keep this Saturday end of board.

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Hearing ends.

To be continued on Saturday.

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