Swati Maliwal Assault Case: Delhi High Court Reserves Order On Maintainability Of Bibhav Kumar's Plea Challenging Arrest

The Delhi High Court on Friday reserved order on the maintainability of the plea filed by Delhi Chief Minister Arvind Kejriwal's aide Bhibhav Kumar challenging his arrest in the alleged Swati Maliwal assault case.

Justice Swarana Kanta Sharma reserved the judgment on maintainability after the Delhi Police opposed issuance of notice on the plea.

At the outset, Senior Advocate Sanjay Jain appearing for the Delhi Police raised preliminary objections to the petition.

He said the the petition is not maintainable as Kumar, in his petition, did not disclose that he filed an application before trial court on the issue of non compliance of Section 41A of CrPC which was rejected.

“There is an order passed rejecting their Section 41A. They moved an application to that effect. It was decided by court on May 20. The application was rejected. Technically speaking, they have 90 days time to file revision against the order under Section 397. They have an alternative remedy available to them,” Jain said.

He further said that no interim relief was sought in the petition and thus, there was no urgency for the matter to be heard on the last day before the court breaks for summer vacations.

Senior Advocate N Hariharan appearing for Kumar said that the main prayer in the plea is to declare the arrest illegal and that the matter involves issue of personal liberty which should not be taken lightly.

He said that there was no necessity of effecting Kumar's arrest and that even the grounds of arrest were not provided to him.

“The Supreme Court has directed that there should be necessity for arrest and reasons should be recorded in writing. Both are missing. Arrest is not meant for the asking,” he said.

Hariharan further submitted that when Kumar's anticipatory bail plea was being heard by the trial court, he was arrested with oblique motive.

He contended that there was no necessity to arrest Kumar when he himself had volunteered to join the investigation.

To this, Jain submitted that the remand application moved by the Dehi Police mentioned grounds of arrest.

“The magistrate had gone through the case diary and satisfied himself on the justifiability of immediate arrest,” he said.

The case was listed today before Justice Navin Chawla. However, it was transferred to Justice Sharma as the complainant in the case, Maliwal, is a Aam Aadmi Party Rajya Sabha MP. Accordingly, the case was transferred to Justice Sharma as she has the roster of hearing special MP/MLA cases.

Kumar, who was denied bail by the trial court on May 27, has said that his arrest by the Delhi Police is illegal and in gross violation of Section 41A of CrPC.

Kumar was initially remanded to five days of police custody. He was later remanded to four days of judicial custody. Yesterday, the trial court remanded him to three days of police custody.

In his plea, Kumar has contended that his arrest is violative of the Supreme Court rulings in Arnesh Kumar v. State of Bihar and Amandeep Singh Johar v. State of NCT of Delhi. Furthermore, Kumar has sought compensation for his “illegal arrest”.

He has also sought Departmental Action in terms of the law laid down in Arnesh Kumar v. State of Bihar, against the erring officials, who were involved in the decision making of his arrest.

The FIR was registered on the written complaint of Aam Aadmi Party's Rajya Sabha MP Swati Maliwal. Kumar was arrested on May 18. The Delhi Police alleged that Kumar has always been non-co-operative during investigation and gave evasive answers to the questions.

It was also alleged that he deliberately did not disclose the password of his mobile phone, which is an important piece of information in the probe to unearth the truth.

Maliwal alleged that Kumar assaulted her when she went to meet Kejriwal at his residence on May 13.

Title: Bibhav Kumar v. State