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Synopsis

The Delhi High Court, on Monday, concluded that Bibhav Kumar's plea challenging his arrest in the Swati Maliwal assault case was not maintainable. The court, while listing the matter for July 8, 2024, issued notice to the State. 

“This Court is, therefore, of the opinion that at this stage, the petition before this Court is maintainable to the extent of issuance of notice to State. The merit of the case will, however, be decided only after a reply is filed in this case by the State”, the bench of Justice Swarana Kanta Sharma held. 

Bibhav Kumar was arrested after a complaint was filed by Swati Maliwal, claiming that Kumar assaulted her when she went to meet Kejriwal at his residence on May 13. She asserted that Kumar slapped her at least 7-8 times while she continued screaming. She pushed him away to protect herself, but he then pounced on her, brutally dragged her, and deliberately pulled her shirt up. 

Bibhav Kumar, represented by Senior Advocate N. Hariharan, approached the court challenging his arrest by the investigating agencies. He argued that Kumar had challenged his arrest in this case primarily on the grounds of non-compliance with Section 41A of the CrPC and the violation of the fundamental rights of Kumar guaranteed under Articles 21 and 22 of the Constitution of India. He also stated that two other reliefs had been sought in this petition: the grant of appropriate compensation to Kumar for his illegal arrest and action against the erring police officers. 

However, Senior Advocate Sanjay Jain, representing the State, contended that the petition was not maintainable as Kumar had not disclosed true facts and had failed to annex the order passed by the Magistrate on May 20. In this order, a separate application filed by Kumar, specifically raising the issue of non-compliance with Section 41A of the CrPC, had been disposed of by the learned Magistrate with observations that this issue had already been addressed at the time of granting police custody remand of the accused/petitioner via an order dated May 19. Senior Advocate Jain argued that Kumar had not challenged the Magistrate's order before the Court of Sessions. Hence, since an alternative remedy was available to Kumar, this writ petition under Article 226 was not maintainable. 

On the contrary, Senior Advocate N. Hariharan further argued that it was not mandatory for Kumar to specifically challenge the Magistrate's order before the Court of Sessions, and he was within his rights to raise the issue of non-compliance with the provisions of law and the directions of the Apex Court before this Court under Article 226 of the Constitution of India, as it directly affected his fundamental rights. Therefore, he requested that notice be issued in the petition.

The Court determined that Kumar had raised an objection regarding the non-compliance of Section 41A of the CrPC when the State sought his police custody remand. The Magistrate addressed and rejected this objection in a detailed order dated May 19, 2024. A separate application on the same matter, filed by Kumar, was also rejected by the Magistrate on the grounds that the issue of non-compliance with Section 41A of the CrPC had already been resolved in the order dated May 19, 2024, rendering the application infructuous.

The court noted that Kumar did not challenge the dismissal of this application before the Sessions Court, as required by law, before approaching this Court. However, this Court opined that Kumar has challenged not only the non-compliance of Section 41A of the CrPC but also the manner of his arrest, alleging malafide intent and a breach of his fundamental rights. Furthermore, Kumar has sought compensation and action against the officers responsible for arresting him without providing notice under Section 41A of the CrPC.

Regarding the maintainability of the writ petition in light of the availability of an alternative remedy, it is pertinent to refer to the observations of the Apex Court in the case of Radha Krishan Industries v. State of H.P. An exception to the general rule that a writ petition is not maintainable when an alternative remedy exists is when the petition seeks enforcement of fundamental rights as enshrined in the Constitution of India. Kumar has specifically alleged a breach of his fundamental rights by the State/police while challenging his arrest on grounds of non-compliance with Section 41A of the CrPC and directions of the Apex Court.

Accordingly, the court directed the State to file a reply within one week. The court further listed the matter on July 8, 2024.

Case Title: Bibhav Kumar v State of NCT