Kundra moves HC, says films do not contain explicitly sexual acts

Businessman Raj Kundra on Friday challenged before the Bombay high court his arrest in a case of alleged production and distribution of pornographic films through apps, saying these videos might be described as "lascivious" but do not show "explicit sexual acts".

Kundra, 45, the husband of actor Shilpa Shetty, was arrested on July 19 by Mumbai Police. A magistrate's court remanded him in police custody till July 27.

The petition sought quashing of the lower court's order.

The magistrate's order sending him in police custody violated the law as serving a notice under section 41A of the Code of Criminal Procedure (before arrest) is mandatory, especially in view of the COVID-19 pandemic, it said.

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.

The material which the police claim to be pornographic did not “depict direct explicit sexual acts and sexual intercourse but shows material in the form of short movies which are lascivious or appeal to the prurient interest of persons at best”, Kundra's plea contended.

Hence section 67A of the Information Technology Act (publishing sexually explicit content) cannot be invoked, and at the most it would attract section 67 (publishing lascivious content), it said.

On July 19, 2021, the police carried out a search at his office and requested him to go to the police station to record statement, Kundra said.
"The respondent (police) arrested the petitioner in the police station where he was called under the garb of recording his statement,” the plea alleged.

After his arrest Kundra was asked to sign a notice issued under section 41A of CrPC which he refused to do, it claimed.

Further, the sections under which he is booked do not prescribe a sentence of more than seven years in jail, so his arrest, without prior notice under section 41 A, "is completely illegal", the petition said.

When the First Information Report was registered in February 2021, he was not even named as accused, Kundra said, adding that a chargesheet was filed in the case in April and several other accused are now out on bail.