Swati Maliwal ‘assault’ case: Delhi HC reserves verdict on maintainability of Bibhav Kumar’s plea against arrest

Jain said that there was “no interim relief” prayed for in the plea and there was “no urgency in the matter” as to why it was brought before the High Court on the last day (before court breaks for summer vacation).

Bibhav Kumar, in his plea has sought that his arrest be declared illegal, in gross violation of the provisions of Section 41A of the Code of Criminal Procedure, and against the mandate of law. He also sought appropriate compensation for his “illegal” arrest and initiation of departmental action against the “erring” officials who were behind the decision to arrest him. On May 28 he was remanded by the trial court to police custody for three days.

Meanwhile, senior advocate N Hariharan appearing for Kumar said that the main prayer is to declare the arrest illegal.

“This is what I’m entitled to in light of Arnesh Kumar’s judgment (by the Supreme Court). It basically involves the liberty of a person. It cannot be taken so lightly. There are directions of the Supreme Court which says that in these situations, there should not only be the necessity of arrest and there also be reasons recorded for the same. Both are missing as far as the present case is concerned. Arrest is not meant for asking,” Hariharan said.

“In a case of this nature where nothing was to be recovered…This is a case where the matter was placed before SHO on May 14. FIR gets registered on May 16. And on May 18 the arrest was effected, when I had moved an anticipatory bail application. I’m on my legs before the hon’ble (trial) court, between 4:00-4:30 pm when the application is being heard. With an oblique motive at 4:15 pm the arrest is effected and the arrest memo is not served on the accused. Reasons have not been given. In an offence like this where there was no necessity to arrest? This is when he wrote a communication to the IO that he is prepared to join the investigation. In this scenario the arrest is effected in this fashion. This needs consideration,” Hariharan argued.

Hariharan also said that he does not know who were the officials who approved the arrest.

Countering this, Jain said that the remand application moved by the Delhi Police mentioned grounds of arrest.

“The accused raised the issue of 41A being violated. He argued it while opposing remand and also moved a separate application for it. The magistrate comes to the conclusion that justification for causing immediate arrest has been given. The magistrate had gone through the case diary and satisfied himself on the justifiability of immediate arrest,” Jain said.

On the police’s argument that Bibhav Kumar can file a revision plea, Hariharan said, “My fundamental right of not being arrested in this fashion was infringed. That is the cause of action. It is not about having a right of revision. There is a procedure established under Section 41 CrPC which was flouted and that is the challenge in the present petition”.

Bibhav Kumar was booked under various provisions of the IPC including Sections 354B (Assault or use of criminal force to woman with intent to disrobe), 506 (criminal intimidation), 308( attempt to commit culpable homicide) among others.