Refusal to accept notice under Section 41A of Cr.P.C implies non-cooperation in the investigation, justifying arrest and remand.

JUDGMENT

A.S.GADKARI, J. - By the present Petitions under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), the Petitioners Accused No.11 and 10 respectively, have impugned the common Order dated 20 th July, 2021 passed by the learned Additional Chief Metropolitan Magistrate, 37 th Court, Esplanade, Mumbai in R.A. No.640 of 2021 in C.R. No.26/2021 of DCB, CID (Property Cell), Mumbai thereby, remanding the Petitioners to police custody and all Orders of subsequent remands by the Trial Court, which extend the custody of the Petitioners and for their release from custody.

2. Heard Mr. Ponda, learned senior counsel appearing for the Petitioner in Writ Petition No.2612 of 2021, Mr. Abhinav Chandrachud, learned counsel appearing for the Petitioner in Writ Petition No.2611 of 2021 and Mrs. Pai, learned Public Prosecutor for the Respondent-State in both the Petitions. Perused record.

3. The record reveals that, a crime bearing No.103 of 2021 dated 5th February, 2021 was originally registered with Malvani Police Station, Mumbai. The said crime was transferred to Detection of Crime Branch, CID (Property Cell), Byculla, Mumbai on the same day which was renumbered as CR No.26 of 2021 under Sections 354(c), 292, 293, 420 read with Section 34 of the Indian Penal Code, Sections 66(E), 67, 67(A) of the Information Technology Act, 2000 and Sections 3,4,6 and 7 of the Indecent Representation of Women (Prohibition) Act, 1986. During the course of investigation, initially complicity of 9 accused persons was disclosed and after completion of investigation against them, a charge sheet has been filed on 3rd April, 2021 in the Court of the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai. The said charge sheet is numbered as CC No.251/PW/2021. During the course of investigation Umesh Ganpat Kamat (Accused No.7) revealed participation of Petitioners in the present crime. Apart from it, from the statement of other witnesses, the role of Petitioners and their complicity in the crime was also revealed. The investigating agency, thereafter obtained permission from the Trial Court for further investigation as contemplated under Section 173(8) of Cr.P.C.

4. The investigation revealed that, the Petitioner Ripu Sudan Kundra @ Raj Kundra has active participation in the present crime and he along with Petitioner Ryan Thorpe and other accused used to maintain Hotshots App through his company Viaan Industries, was circulating/publishing it on social media and used to earn money from it. The Petitioner Ripu Sudan Kundra @ Raj Kundra had established Armsprime Media Pvt. Ltd. Company for the same. The investigating agency accordingly made an application for taking search of the office of Viaan Industries, which was granted by the learned Magistrate. In furtherance of search warrant issued by the learned Magistrate, the investigating agency took search of the office premises of Viaan Industries situated at J.L. Stream, 1501/1502, Lotus Grandeur, V.R. Desai Road, Andheri (West), Mumbai. The police seized certain electronic gadgets including, personal laptop of Petitioner Ripu Sudan Kundra @ Raj Kundra, Hard-Disk and Storage Area Network/Storage Attached Network (SAN). A search panchanam dated 19th July, 2021 has been drawn in presence of panch witnesses by the investigating agency.

5. It is the prosecution case that, notice as contemplated under Section 41A (1) of Cr.P.C. was served upon the Petitioners and they were called upon to attend the office of the investigating agency. That, the Petitioner Ripu Sudan Kundra @ Raj Kundra refused to accept the said notice. The Petitioner Ryan Thorpe accepted the said notice and acknowledged it. The Petitioners were thereafter taken to the office of the investigating agency and were subsequently arrested by effecting Search and Arrest Panchanama dated 19 th July, 2021. At the time of their search, one mobile phone each was