Delhi Police opposes Bibhav Kumar’s bail plea in HC; verdict reserved

New Delhi

Delhi Police on Monday opposed before the Delhi high court a plea filed by Bibhav Kumar, aide of chief minister Arvind Kejriwal, challenging his arrest and remand in connection with the alleged assault of Rajya Sabha MP Swati Maliwal, arguing that there were not only positive evidence but also material circumstances pointing towards the justifiability of the arrest.

A bench of justice Neena Bansal Krishna reserved its verdict on Kumar’s petition.

Senior advocate Sanjay Jain, representing Delhi Police, asserted that police complied with all parameters of arrest while arresting Kumar. These include supply of arrest memo, grounds of arrest and informing Kumar’s wife about the same.

Refuting allegations of “hasty” arrest, Jain contended that the police officers arrested Kumar on May 18, after the investigating officer visited the site of the incident on May 17, ascertained Kumar’s presence at the site, found video recordings leaked to media and his mobile phones formatted.

“He was not arrested in haste. Had he been arrested in haste, the police would have arrested him in Mumbai. When the police visited the site on 17th, it was found that he was there and certain video recording was missing, telephone was formatted, video recording leaked to the media was also missing. There was positive evidence available and there were material circumstances pointing towards the justifiability of arrest. All parameters of valid arrest are there in this case. Grounds of arrest, good, bad or ugly were communicated to him (Kumar),” Jain submitted.

Kejriwal’s key aide approached the Delhi high court two days after the city court denied him bail in the case on the grounds that allegations made by Maliwal had to be taken at their face value.

On May 27, the city court 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 MLC (medico-legal certificate) after four days. Taking note of the nascent stage of the 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 painted a picture that his arrest was hasty, circumvented his rights, was not in compliance with the provisions of Section 41A of the CrPC, which mandates police to issue notice to the person accused of committing an offence before arrest without a warrant and law laid down in Arnesh Kumar v State of Bihar. In the Arnesh Kumar case, the Supreme Court formulated guidelines to prevent unnecessary arrests. 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 also sought compensation for his illegal arrest and initiation of departmental action against “erring” officials involved in the decision to arrest him.

On July 1, the high court issued notice in Kumar’s plea, rejecting Delhi Police’s objections on the maintainability of the petition. A bench of justice Swarana Kanta Sharma relied on the Supreme Court’s verdict in the Radha Krishan Industries v State of HP (2021), observing that Kumar, while challenging his arrest on the ground of non-compliance of Section 41A, CrPC, has specifically alleged breach of his fundamental rights by the state/police.

In the Radha Krishan Industries case, the Supreme Court ruled that a writ petition before the high court, irrespective of the existence of an alternative remedy, would be maintainable if it was filed for enforcement of fundamental rights.

Representing Kumar, senior advocate N Hariharan and advocates Rajat Bhardwaj and Mohd Irshad contended that police picked up their client “illegally” from Kejriwal’s residence despite Kumar agreeing to cooperate with the investigation. Hariharan contended that the police arrested his client in violation of Section 41A of the CrPC, during the arguments of his anticipatory bail application, to purely defeat its purpose. The senior lawyer further underscored that there was neither a necessity to arrest his client nor a possibility of Kumar tampering with evidence, as the same was seized by police prior to his arrest.

Kumar was apprehended by Delhi Police on May 18 and 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 plea 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 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 the FIR, Maliwal alleged that Bibhav Kumar slapped her seven to eight times without 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 by Maliwal.