Following his arrest on 19 July 2021, Raj Kundra had moved the Magistrates Court in Mumbai for a bail. His application was rejected and his custody extended. Raj Kundra went to the Bombay High Court in appeal and also challenging his arrest alleging his arrest was bad in law as the police had failed to follow the letter and the spirit of the Indian Criminal law.
On Saturday, 7 August the Bombay High Court rejected his pleas and dismissed his application for grant of bail.
In his petition, Kundra had contended that his arrest was illegal as the mandatory provision of issuing notice under Section 41A of the Code of Criminal Procedure (CrPC) was not followed. He said he was called by the police to their Byculla office on the pretext of recording a statement but was arrested instead.
The area of law being invoked by Raj Kundra’s lawyers deals with crimes punishable with more than 7 years’ imprisonment. The alleged crimes of Kundra do not fall in that area and thus his lawyers argued his arrest was made not following the proper procedures prescribed by law.
Law makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time.
Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary.
At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
Understandably Raj Kundra’s lawyers argued that not only was Section 41A of Criminal Procedure Code (CrPC) violated by not issuing a notice but the magistrate court also ignored his application opposing his “unlawful” detention by sending him to police remand till July 23.
Kundra’s lawyers argued that the police remand order should be quashed and he should be released.
Prima facie the argument seems well founded and one would wonder why the High Court would not grant Raj Kundra the much-coveted bail.
The court accepted the prosecution argument that the arrest was “necessary” in the opinion of the police officer investigating the case and the reasons for his opinion (read judgement) to make the arrest were duly recorded by the officer in the case diary presented to the magistrate.
Taking note of the prosecution’s allegation that the Raj Kundra had tried to destroy evidence, Justice AS Gadkari said the petitioners did not deserve any relief at this point and rejected the bail application.