Swati Maliwal Case: Delhi HC Deems Bibhav Kumar’s Plea against Arrest ‘Maintainable’

The Delhi High Court has deemed a plea filed by Bibhav Kumar challenging his arrest in connection with the alleged assault on AAP MP Swati Maliwal at the CM’s residence as maintainable and has sought the city police’s response.

A single bench of Justice Swarana Kanta Sharma, who had reserved the order on the maintainability of Kumar’s petition on May 31, issued a notice and asked the Delhi Police to file its reply within one week.

Background of the Case

Bibhav Kumar, currently in judicial custody, is accused of assaulting Maliwal at Kejriwal’s official residence on May 13 and was arrested on May 18. Meanwhile, another bench led by Justice Anoop Kumar Mendiratta granted Maliwal’s counsel additional time to respond to Kumar’s bail plea and scheduled a hearing for July 8.

An FIR against Kumar was registered on May 16 under various Indian Penal Code (IPC) provisions, including criminal intimidation, assault or criminal force on a woman with the intent to disrobe, and attempt to commit culpable homicide. The senior counsel for the police opposed the issuance of a notice on the petition challenging the arrest, arguing that it was not maintainable as the trial court had already addressed objections raised by Kumar.

High Court’s Observations

The high court noted that a writ petition can be deemed maintainable even if an alternative remedy exists, especially when it concerns the enforcement of fundamental rights under the Constitution of India. The court observed that Kumar had specifically alleged a breach of his fundamental rights by the State/police and challenged his arrest on the grounds of non-compliance with Section 41A of the Cr.P.C. and directions from the Supreme Court.

The court stated, “The petitioner herein has specifically alleged a breach of his fundamental rights by the State/police, while challenging his arrest on the grounds of non-compliance with Section 41A of Cr.P.C. and directions of the hon’ble apex court.” It concluded that the petition was maintainable to the extent of issuing a notice to the respondent and that the merits of the case would be decided after the State’s reply is filed. The case has been listed for further hearing on July 8.

In his plea, Kumar has requested a declaration that his arrest was illegal and in gross violation of Section 41A of the Code of Criminal Procedure, and against the law. He claims his arrest was made with an “oblique motive” while his anticipatory bail plea was pending in the trial court, constituting a violation of his fundamental rights and legal provisions. Kumar has also sought “appropriate compensation” for his “illegal” arrest and initiation of departmental action against the officials involved in the decision-making of his arrest.

The Tis Hazari court had denied bail to Kumar on June 7, citing “grave and serious” charges and the potential for him to influence witnesses. Kumar’s initial bail plea was dismissed on May 27 by another sessions court, which noted that there appeared to be no “pre-meditation” on Maliwal’s part in lodging the FIR and that her allegations could not be “swiped away.”

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