Swati Maliwal assault: Delhi HC to pass order in Bibhav Kumar’s plea tomorrow

The Delhi high court is set to pronounce on Monday its verdict on a petition by Bibhav Kumar, a key aide of Delhi chief minister Arvind Kejriwal, challenging his arrest by police for allegedly assaulting Rajya Sabha MP Swati Maliwal.

The judgment will be pronounced by justice Swarana Kanta Sharma at 2.30pm. The verdict will come on a day when another bench in the high court is expected to consider Kumar’s bail plea that he had moved separately.

Kumar approached the Delhi high court two days after the city court denied him bail in the case saying that the allegations made by Maliwal had to be taken on their face value and could not be swiped away.

The city court on May 27 noted that a mere delay in registering the first information report (FIR) would not have much impact on the case as the injuries were apparent in the medico-legal case (MLC) after four days. Taking note of the nascent stage of investigation, the judge noted that the apprehension of influencing the witnesses or tampering with the evidence could not be ruled out.

Kumar’s petition before the high court said that his arrest was hasty, it circumvented his rights, and it was not in compliance with the provisions of Section 41A of the CrPC and the mandate laid down in Arnesh Kumar v State of Bihar. The said section mandates the cops to issue notice to the person accused of committing an offense before making an arrest without warrant. In Arnesh Kumar, the Supreme Court had formulated guidelines to prevent unnecessary arrests and to ensure that arrests are made only when necessary.

The plea underscored that he was apprehended during the pendency of certain legal matters concerning him including an application requesting compliance with Section 41A and an anticipatory bail application and without considering his May 17 complaint.

Besides challenging his arrest, Kumar has also sought compensation for his illegal arrest and initiation of departmental action against the unknown erring officials who were involved in the decision-making process of arresting him.

Delhi police’s legal team led by senior advocate Sanjay Jain and standing counsel Sanjeev Bhandari had prima facie opposed the maintainability of Kumar’s plea. They argued that the plea was not maintainable as it was premised on the fact that the cops arrested him in contravention of Section 41A CrPC, the city court on May 20 rejected Kumar’s application requesting compliance of the said provision.

Jain argued that Kumar had an “alternate legal remedy” of challenging the May 20 order within 90 days by filing a revision petition. “There is no interim relief and there is no urgency in this matter,” Jain argued. The counsel has asserted that it arrested Kumar after following the procedures laid down under law and had complied with the provisions laid down under Section 41A of CrPC.

The lawyers had also argued that Kumar was supplied with the reasons for arrest in writing, adding that the magistrate had gone through the entire case diary and satisfied himself on the justifiability of the grounds of arrest.

Countering the claims, Kumar, represented by senior advocate N Hariharan, asserted that the plea was maintainable as his client was arrested illegally in a case which did not require any recovery, while the city court was hearing his application for anticipatory bail. The senior counsel argued that the cops arrested Kumar with “oblique motives” and had neither supplied his client with the arrest memo and or reasons for arrest in writing. Hariharan stressed that there was no necessity to arrest his client as he had voluntarily agreed to cooperate with the investigation. He further emphasised that the arrest has inflicted humiliation and unlawfully restricted his client’s freedom causing profound mental distress to him, his family, and associates.

Kumar was apprehended by the Delhi Police on May 18, and had formally arrested amid the hearing of his anticipatory bail plea. The following day, he was remanded in police custody for five days and later sent to judicial custody. On May 20, the court rejected Kumar’s bail and on May 21, he was remanded in police custody for three more days.

The case pertains to allegations made by AAP Rajya Sabha MP Swati Maliwal, who claimed that Kumar assaulted her at the CM’s residence on May 13. Based on Maliwal’s complaint, police filed an FIR on charges of attempted culpable homicide, assault with intent to disrobe, wrongful restraint, criminal intimidation, and insulting the modesty of a woman.

In her FIR, the Rajya Sabha MP alleged that Bibhav Kumar slapped her seven to eight times without any provocation at the CM’s residence on May 13, when she went to meet Kejriwal. He slapped her, kicked her in the chest and pelvis, and deliberately pulled up her shirt, Maliwal alleged.

Kumar, in turn, filed a complaint alleging unauthorised entry and threats by Maliwal, hinting at possible political motives behind the accusations.