Bibhav Kumar's Challenge To Arrest In Swati Maliwal Assault Case Maintainable: High Court Issues Notice To Delhi Police

The Delhi High Court on Monday accepted the maintainability of a 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 pronounced the order which was reserved for judgment on May 31. Notice has been issued to the Delhi Police.

The Delhi Police had opposed issuance of notice on the plea. At the outset, Senior Advocate Sanjay Jain appearing for the Delhi Police had 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.

Senior Advocate N Hariharan appearing for Kumar had 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.

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

While admitting the plea, the court said that it is not the non-compliance of Section 41A of Cr.P.C. alone which was challenged by Kumar but also the manner in which he was arrested, the malafide of arrest and breach of his fundamental rights.

“…that at this stage, the petition before this Court is maintainable to the extent of issuance of notice to the respondent. The merit of the case will, however, be decided only after a reply is filed in this case by the State,” the court said.

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

In his plea, Kumar 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 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.

Kumar recently moved the Delhi High Court seeking bail in the case. Notice was issued on his bail plea last month.

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.

Counsel for Petitioner: Mr. N. Hariharan, Senior Advocate with Mr. Karan Sharma, Mr. Rajat Bhardwaj, Mr. Mudit Jain, Mr. Mohit Siwach, Mr. Kaustabh Khanna, Mr. Siddharth Yadav, Ms. Punya Rekha Angara & Mr. Aayush Goswami, Advocates

Counsel for Respondent: Mr. Sanjay Jain, Senior Advocate with Mr. Sanjeev Bhandari, ASC and Mr. Atul Kumar, APP for the State with Ms. Anvita Bhandari, Ms. Charu Sharma, Mr. Arjit Sharma & Mr. Vaibhav Vats, Advocates

Title: Bibhav Kumar v. State

Citation: 2024 LiveLaw (Del) 736