New Delhi, Jul 1: The Delhi High Court on Monday held as maintainable a plea moved by Chief Minister Arvind Kejriwal's close aide Bibhav Kumar challenging his arrest in connection with the alleged assault on AAP MP Swati Maliwal at the CM's residence and sought the stand of the city police on it.
Justice Swarana Kanta Sharma, who had on May 31 reserved the order on the maintainability of Kumar's petition, issued a notice in the matter and asked Delhi Police to file its reply in one week.
Kumar, presently in judicial custody, allegedly assaulted Maliwal at Kejriwal's official residence on May 13. He was arrested on May 18.
Meanwhile, another bench of Justice Anoop Kumar Mendiratta granted time to Maliwal's counsel on Monday to file a reply to Kumar's bail plea and listed it for hearing on July 8.
The FIR against Kumar was registered on May 16 under various Indian Penal Code (IPC) provisions, including those related to criminal intimidation, assault or criminal force on a woman with the intent to disrobe and attempt to commit culpable homicide.
The senior counsel appearing for the police opposed the issuance of a notice on the petition challenging the arrest on the grounds that it was not maintainable.
It was argued that the trial court has already ruled on the objections raised by the petitioner against his arrest and he should therefore challenge that order instead of filing a petition.
In the order, the high court held that a writ petition can be held to be maintainable even if an alternative remedy is available when it has been filed for enforcement of fundamental rights in the Constitution of India.
“The petitioner herein has specifically alleged breach of his fundamental rights by the State/police, while challenging his arrest on the grounds of non-compliance of Section 41A of Cr.P.C. and directions of the hon'ble apex court,” the court noted.
“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 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 concluded, listing the case for further hearing on July 8.
Kumar, in his plea, has sought a direction to declare his arrest as illegal and in gross violation of the provisions of Section 41A (notice of appearance before police officer) of the Code of Criminal Procedure and against the mandate of the law.
He has claimed he was arrested with an “oblique motive” while his anticipatory bail plea was pending in the trial court, in violation of his fundamental rights as well as the law.
In the petition, Kumar has also sought “appropriate compensation” for his “illegal” arrest and initiation of departmental action against the erring officials involved in the decision making of his arrest.
The Tis Hazari court had, on June 7, refused to grant bail to Kumar, saying he was facing “grave and serious” charges and that there was an apprehension that he could influence witnesses.
Kumar's first bail plea was dismissed on May 27 by another sessions court, which said there appeared to be no “pre-meditation” on Maliwal's part in getting the FIR lodged and that her allegations could not be “swiped away”.
