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Additional Chief Metropolitan Magistrate, 37^th Court Esplanade, Mumbai, rejected Bail Application of Businessman, Raj Kundra and Ryan John Michael Thorpe, accused(s) in the alleged filming and publication of Pornographic films.

Shri SB Bhajipale, while rejecting the Bail Application, said,

“One of the consideration for refusing or granting of Bail is the nature of offence and gravity of offence.

The effect of alleged offence is having nexus with public at large. The alleged offence is also detrimental to the health of the society.

In such circumstances, societal interest in the prosecution of a crime which has a wider social dimension cannot be overlooked.

At present investigation is in progress. In such circumstances, at this stage release of the accused will definitely hamper investigation.”

It was submitted by the Counsel for the applicant(s) that they have been falsely implicated and have no role to play in the present case.
Further, it was submitted that the arrests of both the accused(s) are against the provision of Section 41A, CrPC, 1973 as also in violation of the Supreme Court judgment in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

It was highlighted that material investigation to the extent of the given accused is completed and he is already co-operating with the investigating authority.

Prosecution submitted that release of the accused(s) might affect the course of investigation, expressing apprehensions around Tampering of Evidences.

What the Court held:

Court recorded that grant of bail is "discretionary" and that such discretion should be exercised taking into consideration "personal liberty" and "Nature of Offence".

On the contention of illegal arrest, learned ACMM referring Section 41A observed,

"The Investigating Officer, when arrests the accused in such case, then he should satisfy that the arrest is necessary and he should record his reasons in writing for making the arrest. Subsequent to that, duty is casted upon the Magistrate to satisfy itself with the reasons of arrest cited by the IO and that detention is not authorised mechanically and casually. In the case at hand, the Investigating Officer has already mentioned the reasons for arrest of both the accused. In such circumstances, it cannot be said that the accused are entitled for bail on the ground that their arrest is illegal."

On the course of investigation, Court noted,

"After going through the remand reports and reply to the bail application filed by the investigating officer, it appears that one accused Pradeep Bakshi, who is relative of Accused 10 is absconding. During the investigation, huge data has been collected by the IO. The process of analysis is still going on. These all the facts and circumstances show that the investigation is going on. No doubt, both accused are in judicial custody. However, taking the accused in Judicial Custody by refusing Police Custody does not mean the investigation is complete. It is worthwhile to mention here that the accused 11 is an IT professional. The accused 10 in assistance with 11 deleted some data which was incriminating against them. In such circumstances, there is evey possibility of tampering the evidences if the accused is released on Bail." 

Section 41 CrPC empowers the Investigating Officer to arrest an accused without warrant in a cognizable offence.

By way of amendment in 2010, such powers are restricted for offences with imprisonment for a term less than, or equal to 7 years. It is to be noted that the offence in the present case attracts a maximum punishment of 7 years.

Yesterday, Bombay High Court bench of Justice AS Gadkari asked Senior Advocate Aabad Ponda, appearing for Kundra,

“What is so grave urgency that I should hear your matter on production board keeping my regular board aside? Please go before the regular court. It is sitting after 2 days.”

It would not be out of place to draw relevance from Supreme Court order in Munawar Faruqui case where the Court, recording non-compliance with Section 41 CrPC, 1973, issued notice and allowed the accused on ad-interim bail, subject to conditions by the Trial Court. Stay was granted on production of warrants as well.

Mumbai police had arrested Kundra on July 19.

A Complaint was registered under Sections 354(c), 292, 293, 420, r/w 34 of the Indian Penal Code, Section 66(E), 67 & 67A of the Information Technology Act, 2000 and Sections 2(g), 3, 4, 6 & 7 of the Indecent Representation of Women (Prohibition) Act, 1986 for allegedly filming and telecasting pornographic content.

Case Title: Raj Kundra v. State of Maharashtra