Thread by @barandbench

#BombayHighCourt is hearing the plea by #RajKundra challenging his remand by #MumbaiPolice in porn racket case.

@TheRajKundra

Chief PP Aruna Pai reiterates her submissions made on Saturday.

#RajKundra #BombayHighCourt

Pai: Material against them is that they sre involved in streamign and production of obscene content on Hotshot and Bolly Fame app.

#RajKundra #BombayHighCourt

Pai: Investigation started after Unesh Kamat revealed certain facts against Kundra and Ryan Thorpe, chief of IT of the company.

#RajKundra #BombayHighCourt

Pai: We conducted an office search in office of Kundra, where Thorpe was also present.

#RajKundra #BombayHighCourt

Pai: There were several materials found. Initially s 41A notice was given. Kundra refused, but Thorpe accepted.
Several incriminating material was found. After issuing notice, they wanted to know if they should arrest or not.

Pai: the reason for arrest is they started deleting messages from whatsapp groups thereby destroying evidence.

#RajKundra #BombayHighCourt

Pai: The attitude of Kundra speaks volumne of his co-operation in the investigation. We do not know if it is all deleted. Investigation is ongoing. Police is trying to retireve.

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Pai: in remand application of Ryan Thorpe, it is stated that the notice is issued.

#RajKundra #BombayHighCourt

Pai: Kundra is admin of Hotshot. Kendrin company is owned by his brother in law Pardeep Bakshi. What is stated in remand application reflects in case diary and station diary.

Pai shows the case diary and station diary signed by magistrate.

Pai: The magistrate perused it and it is reflected in the order of the bail application.

#RajKundra #BombayHighCourt

Justice Gadkari is going through the documents.

Pai: My submission is they were arrested because they were trying to destroy or they destroyed some of the evidence.

Pai: and therefore Section 201 of IPC was added.
Raj Kundra was admin of Hotshot App. We had asked accused no 10 to sign the notice. But he refused to, so no co-operation at all.

Pai: section 164 statement is recorded of one employee. In the laptop of the office there was a hard disk which had 68 porn videos.

#RajKundra #BombayHighCourt

Pai: I told your lordship earlier than 51 videos were found in SAN. So 68+51 videos were found.
And Power point presentation where we found details of this hotshot app.

Pai: What we found in the PPT was - the market starategy and the financial projection. On the laptop of Kundra, we have found film script with sexual content.

Pai: Kundra deleted icloud from mobile. Some office emails have been revived from the iCloud.

Pai: Personal mobile of accused 10, we found whatsapp group and chat. He had direction with Bakshi and Thorpe. Viaan industries account, Bolly Fame account, and there was discussion of HotShot App.

Pai: Kundra’s laptop we recovered user files, emails, face time, logs, contacts, interenet browsing where we found various transactions with Kendrin, and invoices.

Pai: We recovered SAN. We recovered 51 videos. This pertains to Kundra. thorpe also destroyed evidence. He was using Oneplus mobile.

Pai: But there are some chats with Kamat, Bakshi, Bolly Film technician recovered from his mobile phone. From his laptop we found Amazon Video services invoices and chats with other accused.

Pai: May I also point out that Kundra holds British passport.

Pai: It was argued that 41A was mere formality. My arguments is 41A was issued to both. If they are destroying evidence can agency be mute soectator in these cases.

Pai: From Arnesh Kumar only one para - sec 41 is incorporated when police may arrest without warrant. The Police officer has to be satisfied that there will not be commission of offence.

Pai: In this case, the law mandates the officer to state facts and record reasons in writing, which we have stated everywhere, that why we arrested despite 41A. It depends on facts of each case.

Pai: the judgments all relied by Mr Ponda will be applicable to facts of those cases. But if accused is destroying evidence then this would serve no purpose.

Pai: another fact that I missed is HotShot app which is managed by Kundra was taken down by Youtube, Google and Apple as it was against their nudity policy.

Court: Have you mentioned that in remand copy?

Pai: Yes

She reads from the application. During review they had stated that they don’t allow services containing pornographic content.

Pai submits an apex court judgment of 2018.
Pai: the Apex Court had set aside orders of this court on a habeas corpus petition.

Pai: after issuing notice under 41A, the accused was arrested, which was challenged by habeas corpus petition.

Pai: the SC reversed order of our court. The decision of HC is incorrect on two counts.
She is reading from indiankanoon.org/doc/100407809/

#RajKundra #BombayHighCourt

Pai: it is submitted that the said observations were wholly unwarranted as the concerned Deputy could not have given concession to release Rizwan Alam Siddique in the teeth of a judicial order passed by the Magistrate directing police remand until 23rd  March, 2018.

Pai (from the order): it is evident that the High Court proceeded to make observations without giving any opportunity, whatsoever, to the concerned police officials to explain the factual position on affidavit.

Pai: we have got around 9 volumes on the chargesheet. There is the material in the panchnama also.

Court: Talk about 41A.

Justice Gadkari is going through panchanamas submitted by Pai.

Pai: the magistrate after perusing the reasons given in remand application has stated that the remand is as per law. And we have included s 201.

Pai concludes her submissions.

Sr Adv Aabad Ponda for Kundra begins his rejoinder.

Ponda: the judgment submitted by Pai does not lay down that illegal arrests cannot be challeneged. It cannot be argued that these orders of remand cannot be challenged. It says no writ of habeas corpus can be issued.

Ponda (reading from the judgment ) question is whether habeas corpus could be maintained..

Ponda: I am respectful agreement on habeas corpus aspect. The other reason is judicial orders cannot be challenged under 226 under DB.

Ponda: I cannot go to same magistrate and say recall that order. That is not permissible.

Ponda is referring to 2004 5 SCC 729. It very clearly says revision is not allowed.

Ponda: the other legal issue is that para 7 relied upon by Arnesh Kumar.
My submission is this applies when you want to apply 41A, it only applies for 41. Then by all means do that.

Ponda: this case we do not have to go to 41(1) as that is not the path chosen by police. It is 41A(1).

Ponda: before I come to the law if I tamper, destroy evidence.. please consider the facts. The time as mentioned in panchanama is, 20.50 at night and this is at Andheri.

Ponda: In the remand application what is seized is mentioned - 2 HDs, one laptop, and one mobile.

Ponda: Laptop and mobile has been taken. It is in custody prior to 20.50 hours. Ryan’s mobile is also taken. My machines are with you…

Ponda: all machines being capable of being deleted is with them.

Court: ultimately notice was given. And then the other gentleman accepted and you did not accept it.

Ponda: the panchnama does not record that Evidence aas being deleted. Because it can’t be.. there are 22 people.

Ponda: Nowhere in this panchanama it states that we are deleting or deleted.

Ponda: The panchnama does not say anything. Whatever has happened, she (Pai) has stated..

Ponda: I am submtting that the panchnama was not giving details of my deleting the evidence.. the notice was given to me after panchnama. I had no equipemnt to delete anything. It was taken charge of.

Court: Where is it their case that this (evidnece deletion) happened after 20.50 or so..
I asked her (Pai) if it was in presence of police officers, she said yes.

Ponda: This deletion as claimed by Pai is supposedly after 41A was goven, because the panchnama does not say so. The propensity to delete is after 8.50 which is not possible because it is seized.

Ponda: the panchnama is what? To record seizure. If I am deleting, won’t they take charge of it all. They cannot be heard in vacuum like that, that I was deleting.

Ponda: The section pertaining to deletion of evidence was added on July 23 and not on July 20.

Ponda: the police is saying in the remand that the evidence was deleted in the past.
If a cognizable offence is committed in the presence of the police, then the police may arrest me, but then they ought to release me on bail as it is bailable offence.

Ponda: For the purposes of the other aspects, first he must register that offence..

Court: but what if this is part of earlier offence?

Ponda: No I am saying, he may give me notice, wait for me to comply, then arrest that person and then release on bail.. for 201..

Ponda: There would be a charge, and then they have to put that in the arrest memo.

Court to continue at 2.30 pm.

Bench has assembled.

Ponda: As law goes, it can be applied at many instances. If the other sections have life imprisonment then it is cognisable.
If the offence is of 10 years or less, than it is non cognisable.

Ponda is reading the schedule of IPC.

Ponda: so the procedure is different. They have to get the warrant of arrest. If has nothing to do with other offences that are charged.

Ponda: For refusing a notice, it is a non cognizable offence. Sec 41A(3) IPC Requirement is that you should give the man a chance to appear. I am not saying wait for 3 weeks. I am saying approach the magistrate.

Ponda reads from Ryan Thorpe’s petition.

Ponda: Thorpe deleted in February 2019, they claim. Where is the question for me deleting any data. The fact that I deleted is not found in remand 1 or 2.

Ponda: It cannot be taken lightly, the officer saying they were deleting the evidence.. This could be argued in every case.

Ponda: to take something from me, they have to give me a receipt, which they haven’t done underS 51 of CrPC.

Ponda: once we deal with powers on cognizability and non-cognizability. There is limited scope of arrest and section 41A and I am going to linit to that.

Ponda concludes his submissions.

Adv Abhinav Chandrachud appears for Thorpe.

Chandrachud: I was not given an opportunity to comply with the notice. The case is that I was involved in destruction of evidence.

Chandrachud: The first report says that I was in charge of making and then inmediately deleting the evidence. The second report says I was deleting the evidence. And the third submission is on the affidavit which says there is deletion.

Chandrachud: The submission is that there is deletion on July 19, 2021.

Chandrachud: There are discrepancies in this which cast a doubt on prosecution’s case.

Chandrachud reads the remand report. The case before the police on destruction of evidence is that once the video is uploaded, I was destructing it. This is in first remand.

Chandrachud: Then the case changes.

Chandrachud: In next report, they stated that the evidence was deleted in February. And then in affidavit they say that I “started” deleting. So there are three separate versions.

Court asks Chandrachud to read the affidavit.

Court: so you are saying that he should have been given time..

Chandrachud: I am saying the question of deletion did not arise after the 41A notice as that notice indictaed that they do not wish to arrest me.

Chandrachud: So the question of deletion arises only before and not after, assuming there was any deletion.

Chandrachud: There are serious aspersions cast on this allegation..

Chandrachud: Before I could act on the 41A notice they arrested me.

Pai: I only have a few submissions to make. There is a “jhadti” panchnama. And another interesting aspect is that even though he has British passport he has Aadhar card.

Ponda: I want to respond to this.. because this came up for the first time.
Here (panchnamas) they are saying what is found in raid and (another panchnama) they are saying found on@body.

Ponda: I am disputing taking charges of phones and all. What is there to show that I deleted on that night, which is negative by the following factor:
No averment of arrest, or remands, or charge of remand, or ground for further custody..

Ponda: Nothing in the panchnama, not even in 201, because this is linked to deletion in February, it was not until July 23, which was an afterthought to meet the requirements to tackle this petition.

Ponda: I am on arrest.. you arrested me because of deletion. That should have been brought up before the Magistrate during the first or second remand, this is not done.

Ponda concludes his submission. Petition reserved for orders.