The metropolitan magistrate court which granted bail to businessman Raj Kundra on Monday in the porn racket case, observed in its detailed order that the element of inducement, a prime ingredient of cheating, appears to be missing from the case.
While granting bail to Raj Kundra Chief Metropolitan Magistrate SB Bhajipale went through the chargesheet filed by Mumbai Police and said, “After perusal of the chargesheet, it appears that the allegations against the accused are that they are the mastermind of the alleged crime of broadcasting obscene videos through a particular app.”
There are more than eight different sections of the Indian Penal Code (IPC), the Information Technology Act and Indecent Representation of Women (Prohibition) Act under which Kundra is charged.
The court saw that the maximum punishment in the case was seven years imprisonment if the accused are convicted. The maximum punishment of upto seven years is under section 420 of the IPC, which is for cheating.
The court went through the chargesheet and said that it appeared that the statement of a witness, Megha Jaiswal, had been recorded in order to connect the accused, Raj Kundra, with the transactions of Viaan Industries. Jaiswal is the assistant manager in the accounts department at Viaan Industries, which is owned by Raj Kundra.
The court further noted, “However, from her statement it can only be gathered that transactions took place between Kenrin and Hotshot and out of said transactions, there was exchange of amount. However, exchange of amount is not an offence levelled against the accused in the present chargesheet.”
HotShots is a video-on-demand service that provides premium digital entertainment. This app was made by a company named Kenrin allegedly owned by Kundra.
The court further observed that an investigating officer (IO) had taken care to record the statement of witnesses under section 164 of the Code of Criminal Procedure before a magistrate.
Moreover, the server, laptops and mobile of Viaan Industries are already in custody of the IO.
“In such circumstances, it cannot be said that there is a possibility of tampering with the evidence. Moreover, if the statements of witnesses are perused, then the element of inducement which is the prime ingredient of cheating appears to be missing from the case of the prosecution,” observed Magistrate Bhajipale.
The court further saw that at present, all the other accused who were arrested earlier, are already released on bail.
“In such circumstances, only on the ground that further investigation is going on, the accused cannot be kept behind bars till the conclusion of trial. The offences nowhere provide a punishment of more than seven years. The report from a cyber expert is still being awaited. At present, the investigation is completed as the chargesheet is filed on Sept 15,” said Magistrate Bhajipale.
The court further said that the accused cannot be kept behind bar for an inconsiderable period when the investigation is completed.
“It is better to mention here that the trial will take its own time and in such circumstances it will not be proper to keep the accused in custody, when they are ready to furnish surety for their appearance and to abide by conditions imposed by the court,” said the court.
While imposing the condition that Kundra will not leave India without the prior permission of the court, and will not tamper with evidence and will inform the police about any change in contact number or change in residential address, the court granted bail to Kundra and he walked out of the Arthur Road jail on Tuesday.
