Law enforcement agencies investigating a potential crime cannot be "mute spectators" if the accused does not co-operate and tries to destroy evidence, Mumbai Police told the Bombay High Court today.
The court was hearing a petition by businessman Raj Kundra challenging his arrest last month on charges of producing and streaming pornographic content.
He has claimed the police should not have arrested him as they did not summon him prior to taking him into custody. But the police insist it was necessary because he was "trying to destroy evidence"; last week four of his employees told police they were instructed to delete the alleged porn clips.
"If they (the accused) are trying to destroy evidence, is the investigating agency supposed to be a mere spectator? If the accused are not co-operating and are destroying evidence, the investigating agency won't be a mute spectator," Mumbai Police said today.
The police told the court Mr Kundra had deleted his iCloud account, but they found "61 porn videos" and a script with adult content on his laptop, as well as 51 more in digital storage.
They said they also found a WhatsApp group on his mobile phone that contained chats with other accused and a PowerPoint presentation with marketing strategies and projections for 'Hotshots' - the mobile app via which Mr Kundra is accused of distributing the videos.
"We have recovered e-mails, browsing history, FaceTime details," the police said, pointing out that the District Magistrate had found no fault with Mr Kundra's arrest.
However, Mr Kundra's senior counsel, Abad Ponda, pointed out that the remand application confirmed that two hard disks, a laptop and a mobile phone were in the police's custody.
"If my machines are with you, how will I (Mr Kundra) delete?" Mr Ponda asked, adding, "If I deleted before the notice, then they would not have issued the notice to me."
"This is a case of documentary deletion which requires a machine (a computer). My case is that entries in the case diary are contrary to the records of the case," Mr Ponda argued, pointing out the police "can write anything in the case diary".
"It is contrary to the facts of the case. It is not their case that we deleted during the panchanama (a record of materials gathered during the search of Mr Kundra's home)... and we can't delete once the devices are with them. Nobody can delete data in their presence and escape," he added.
On Thursday the police said a notice was issued prior to his arrest but Mr Kundra refused to accept it. The police argued that the refusal "implies the petitioner refused to co-operate".
Mr Ponda argued that such notices give a person two weeks to appear for questioning..
"Kundra was not even given two days or two hours. His office premises were searched on the afternoon of July 19... for about three to four hours during which Kundra was present and cooperating. Later he was asked to accompany the police...and he was arrested," Mr Ponda said.
The police claimed Mr Kundra and his aide, Ryan Thorpe, who has also been arrested, began deleting messages from a WhatsApp group while the search was on, thus destroying evidence.
Raj Kundra, who is actor Shilpa Shetty's husband, was last week also denied bail.
He is currently in judicial custody and is at Mumbai's Arthur Road Jail. He has argued the content in question is not pornography, and that similar material is being streamed on OTT platforms like Netflix.
Ms Shetty today underlined her faith in the law and the judicial process and said she would not comment on the allegations and alleged "unwarranted aspersions", rumours and accusations.