Swati Maliwal assault case: Court dismisses Bibhav Kumar's bail plea

New Delhi [India], May 27 : Tis Hazari court on Monday dismissed the bail application of Bibhav Kumar, who is the former aide of the Delhi Chief Minister Arvind Kejriwal bail application. He has been arrested in the Rajya Sabha MP Swati Maliwal assault case.
He is to be produced before the court tomorrow after the expiry of 4 days of judicial custody.
Additional Sessions Judge Sushil Anuj Tyagi dismissed the bail application after hearing submissions by senior advocate N Hariharan for the accused, additional public prosecutor Atul Srivastava and advocate Madhav Khurana, counsel for Swati Maliwal.
The court had reserved the order on the day after hearing lengthy arguments on the bail plea of Bibhav Kumar, accused in the Swati Maliwal assault case.
Swati Maliwal, who was presented in the hearing, opposed the bail plea saying she was receiving threats. She broke down in tears during the hearing.
At the outset, Delhi Police opposed the bail application by saying that it was not filed in an appropriate court.
Senior advocate N Hariharan submitted that this bail application is maintainable. This is the right court that has jurisdiction to hear the bail application. In this FIR section 308 IPC has been invoked which is triable by the sessions court.
Advocate Hariharan argued that the complainant went to CM's residence and called PA Bibhav Kumar. PA Bibhav Kumar was not present at the CM's house, after which she headed towards the CM's residence without any permission or prior appointment.
"Can anyone enter in this manner, this is the official residence of CM," Senior Advocate Hariharan argued.
"There was a trespass and a report was also filed. She had no appointment for a meeting, and there was no message of her arrival," he further argued.
He further submitted that she was stopped by the security staff after which she asked them "You will make an MP wait," the senior Advocate referred to the report.
"Maliwal sat in the waiting room and asked security to talk to Bibhav Kumar," the senior defence counsel said.
Senior counsel argued, "What she is stating in the FIR, that is not true."
"This FIR is not the result of contemporaneous complaint. FIR was lodged after three days," the senior Advocate argued.
"Kindly look at the place where the alleged incident took place where many people were present. How can such an incident take place at this place," N Hariharan submitted.
"There are many hospitals in the area, but she was taken to AIIMS for medical. There is no grievous injury on the vital part, so where is the question of Culpable homicide not amounting to murder," the Advocate argued.
Defence counsel N Hariharan further argued that the injuries can be self-inflicted.
"The allegations do not make out a case of intention to disrobe her," the senior Advocate argued.
At this point, Swati Maliwal broke down in tears when the defence counsel was arguing.
"This entire FIR is the result of afterthought. I am seeking bail only, not the acquittal," the senior advocate argued.
He submitted that CCTV footage has already been recovered, so there is no question of tampering.
"My (Bibhav) availability to police investigation is from the very beginning, he argued, adding that everything was pre-planned and tailor-made to suit her story," Advocate Hariharan argued.
Senior Advocate further submitted that it was an overreach by the prosecution preventing this court from passing an order on anticipatory bail.
"They informed about the arrest when the court was dictating the order, he added.
He has been in custody since May 18," the senior Advocate concluded his arguments.
Additional Public Prosecutor(APP) Atul Srivastava opposed the bail application and submitted that intention is not required to make out a case of Culpable homicide not amounting to murder, knowledge is sufficient.
"The accused had beaten a lady, alone dragged her and her head hit the centre table, will this not cause death," APP argued.
"If I slap a lady in an open place, it is outraging the modesty of a woman," the APP argued.
Additional Public Prosecutor opposed the submissions of defence counsel that she went there with a premeditated mind to malign Bibhav Kumar.
Her reputation was kept in high esteem by the party chief and was called Lady Singham, the APP submitted.
"The accused was terminated from his post. The accused did not tell the complainant that I was not in service and couldn't arrange the meeting with the CM. It shows the intention on the part of the accused," APP submitted.
APP submitted that there was no occasion earlier when she was asked to take a prior appointment. "Why did the security officer not make a call to PCR," APP argued.
"She was allowed to sit in the waiting room. It was implied permission, where is the question of trespass, APP submitted. When Bibhav Kumar reached there, he asked who allowed her to go inside," he added.
"All the people at the place of occurrence were reporting to Bibhav Kumar. It shows that he is influential. He can tamper with the evidence," APP argued.
Section 308 (Culpable Homicide not amounting to murder) IPC is made out against the accused, the APP submitted.
He added that the complainant was taken to AIIMS as she was residing at CR Park, APP argued.
"She was not maligning the accused," he added.
On the point of delay in FIR, the APP submitted that the complainant did not disclose the entire incident to the police. Even thereafter, a police officer visited the place of the incident.
"In India, women are very reluctant to report the sexual offences," APP argued.
The CCTV footage may be missing due to some technical reasons, the APP submitted.

The court asked, "Why are the police looking into the phone of the accused? APP said that there may be some crucial evidence. iPhone was handed over after formatting, it is tampering, the APP submitted.
"The accused went to Mumbai to format his phone. He admitted that he had formatted his phone and the password was not given. We may ask for further police custody. I strongly opposed the bail application," APP submitted.
Senior Advocate N Hariharan opposed and said the counsel for the complainant couldn't address the court.
The court Advocate Madhav Khurana argued and he referred to judgement whether he can address the court or not.
He submitted that the victim has the right to be heard. The bail application can't be heard without issuing a notice to the victim, Khurana argued.
Swati Maliwal was also standing with her counsel before the judge.
He submitted that Maliwal said that she was going inside and, you could call the police. But the police were not called. As per the MLC, the injuries were there even after four days, which shows the magnitude, Khurana argued.
Three-four days delay is inconsequential in these cases, her Advocate added.
The accused sent a complaint through email on May 17, Advocate Khurana submitted.
"The accused was found at the place of occurrence, he was interrogated but was evasive in answering," Advocate Khurana said.
He also submitted that the accused allegedly assaulted a public servant earlier.
"If the accused is innocent, then why format his phone, tempered the CCTV, and file a complaint on May 17," Advocate Khurana said.
"The complainant is receiving rape and murder threats. The triple test was not satisfied in this case advocate," Khurana argued.
Swati Maliwal also addressed the court. She said after recording her statement, AAP leaders organised a press conference. "I was called a BJP agent".
"They have a huge troll machinery, they have pumped the machinery, she said while adding that the accused was taken to Mumbai and Lucknow by the leaders of the party.
"If this accused is released on bail there would be a threat to me and my family," Maliwal told the court.
She said that the accused is not an ordinary man, he is getting the facilities used by the ministers, Maliwal said.
Senior Advocate M Hariharan rebutted and submitted that there are no ingredients to make out the offence of Culpable homicide not amounting to murder.