Authors: M. Hossain, Founder at LLC and Reshmi Hossain, IP & Commercial Law Specialist
British-Indian businessman Raj Kundra, husband of Bollywood actor Shilpa Shetty and former owner of IPL team Rajasthan Royals, is currently in judicial custody along with his IT technician Ryan Thorpe, after being arrested on July 19 on charges of producing pornographic content. It is reported that Ryan Thorpe had aided Kundra in the production and streaming of pornographic films.
Kundra was booked for allegedly creating and publishing pornographic content on an app called ‘Hotshots’. Raj Kundra and Thorpe were arrested after the Mumbai Police received complaints from several women who had been purportedly lured on the ‘pretext of acting in certain web series’ and made to work in nude or semi-nude movies.
The app was reportedly developed by Arms Prime Pvt Ltd, previously owned by a UK firm allegedly belonging to Raj Kundra’s brother-in-law that made the adult content available on OTT platforms. However, since publishing, transmitting, streaming pornography or causing it to be published is banned in India, production of such movies and making it available to be viewed, published or transmitted in India is also illegal. It was stated by the police authorities that Kundra, by charging a subscription fee to users of the app, had earned over Rs. 1.17 crore between August and December 2020.
Raj Kundra and Ryan Thorpe have been booked under Indian Penal Code Sections 420 (cheating), 34 (common intention), 292 (anything shall be deemed to be obscene “if it is lascivious or appeals to the prurient interest or if its effect (is) such as to tend to deprave and corrupt person”) and 293 (punishment for any person who “sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do”).
They have also been booked under several sections of The Information Technology (IT) Act including Section 67 which is a crucial provision relating to pornography in electronic form. It seeks punishment for anyone who “publishes or transmits or causes to be published or transmitted in the electronic form” any obscene material. The police have booked under Section 67A of the IT Act (transmitting sexually explicit material) of the Information Technology Act; and certain provisions of the Indecent Representation of Women Act.
Raj Kundra and Thorpe’s arrest relates to a case dated 4 February 2021, in which the Mumbai Police had arrested five artistes for allegedly forcing women to act in porn movies, which were then uploaded on apps like ‘Hotshots’. It was largely during the lockdown in the country, owing to the pandemic, that these apps gained immense popularity with subscribers in lakhs. Raj Kundra’s role only came to light after the arrest of the producers as the police traced his association with the UK production house’s executive.
Kundra and Thorpe respectively had moved the Bombay High Court, through separate writ petitions, contending that their arrest was illegal and not in accordance with the due procedure laid down in law. The applications stated that the Mumbai Police did not issue summons under Section 41A of CrPC before the arrest, and also challenged the extension of their police remand for 14 days by a Metropolitan Magistrate. However, the police stated that post search at Raj Kundra's office, summon was duly issued on the spot under Section 41A of CrPC, but was refused to be accepted and signed, following which the police executed the arrest. The police had opposed Kundra’s bail on the grounds of tampering of evidence and that Kundra, being a British national, could flee the country to avoid prosecution.
In relation to this, the public prosecutor had contended that Kundra and his associates were found deleting certain WhatsApp chats, which is reflective of his attitude towards the investigation of this case. Further, in response to Kundra and Thorpe’s contention that the addition of new charges including section 201 (punishment for causing disappearance of evidence) of the Indian Penal Code, which were not pressed at the first instance, and added as an afterthought, the prosecution notified the Court that Section 201 of the IPC (destruction of evidence) was subsequently invoked against the accused persons asserting that- "If accused persons are destroying evidence, then can the investigating agency be a mute spectator?”.
It is interesting to see what evidentiary value will be attributed to such chats in this criminal case, as a 3-Judge-Bench of the Supreme Court recently ruled[i] that the easy deletion and creation of messages on WhatsApp hardly allows Courts to attach values to such electronic messages. Therefore, the prosecution will surely need to ensure that they do not build their case primarily on the evidence of WhatsApp communications.
The Bombay High Court ultimately dismissed Kundra and Ryan Thorpe’s writ petitions stating that, “There was nothing wrong in the magistrate court’s order when it remanded the accused persons to police custody on July 20.”
Raj Kundra’s situation brings forth various questions of law that can be reflected upon. For instance, in cases like these, that warrant the invocation of both the IPC and the IT Act – both covering similar offences while having differing penalties, shifts our attention to cases like M.F. Hussain v. Raj Kumar Pandy[ii] wherein the Delhi High Court held that any crime having some kind of association with an electronic medium, attracts the provisions of the IT Act.
It is interesting to note that the Supreme Court in March 2021 already ruled on an issue having a slight overtone in the subject matter of the Kundra case. The Court made observations while hearing a plea filed by the head of Amazon Prime Video’s India Originals, Aparna Purohit, against the rejection of her anticipatory bail application by the Allahabad High Court. It was opined that there should be a level of screening for shows run on Over-the-top (OTT) platforms as some shows on these platforms contained pornography[iii].
Raj Kundra may also be booked under the Prevention of Money Laundering Act 2002 (PMLA) and Foreign Exchange Management Act 1999 (FEMA) as it was reported that the central agency responsible for investigating financial irregularities may bring complaints against Kundra under the said Acts. The Mumbai Police is supposed to notify the ED, who will then investigate the financial irregularities in the case, which also involves a purported foreign exchange violation. The Mumbai Police Department informed the Court that there are also reports of proceeds from such pornographic content being used for online betting. As on 3rd September 2021, the businessman is behind bars in the instant case related to adult films.
However, in relation to another case of 2020, concerning complaints that some platforms were publishing obscene content as part of a web series, Raj Kundra and his aide approached the Bombay High Court after the Sessions Court had rejected their pre-arrest bail plea earlier.
In his application, Kundra had relied on the fact that his name had not been reflected in the FIR filed by the cyber police last year, and that he had given a detailed statement to the police on multiple occasions to cooperate with the probe. He also mentioned that he fulfilled compliances as documents required by the officer concerned along with the recording of the statements of prosecution witnesses were all made readily available.
Whilst defending his position in the 2020 case, Kundra submitted that in February 2020, he was approached to invest in a venture by the name of Armsprime Media Pvt Ltd, which provided a digital platform for artists to showcase their talents and interact with clients based on a subscription model. On considering the concept of the venture to be unique and genuine, he had decided to invest. He further claimed that his association with the company was only from February to December 2019, and that he had never taken any active part in its contract building or content creation. It was also claimed that the business had nothing to do with pornography, as arrayed by the police and that he was being falsely implicated in the matter. The plea further stated that Kundra was arrested in another case related to pornography (case discussed above) under similar sections, and the search by the investigators had led to seizure of electronic devices and other documents which were already in their custody. It was also contended by Kundra’s legal counsel that co-accused in this instant matter, including Sherlyn Chopra and Poonam Pandey were granted interim protection by the High Court and Kundra’s custodial interrogation was also not required. Besides, it was asserted that the offences levelled against Kundra were punishable with less than 7-year imprisonment and, therefore, he deserved protection from arrest. In relation to this case, in its most recent order dated 25 August 2021; the Bombay High Court further extended the allowed interim relief till 8 September 2021.
It is interesting to note that despite being granted interim relief in this 2020 case, Kundra remains in custody in relation to the latest pornography case wherein him and his associate were arrested in July 2021, for playing an active role for maintaining the App and deriving remuneration from the same.
[i] https://www.zee5.com/zee5news/supreme-court-whatsapp-messages-cant-be-used-as-evidence-in-court accessed 18 August 2021
[ii]2008 CrLJ 4107 (Del)
[iii] https://www.businessinsider.in/tech/news/indias-supreme-court-observes-that-ott-platforms-are-showing-pornography-and-proposes-screening-of-online-content/articleshow/81328555.cms accessed 18 August 2021