Swati Maliwal 'assault' case: Delhi CM's aide Bibhav Kumar sent to four-day judicial custody, moves bail application

New Delhi [India], May 24 : The Tis Hazari Court of Delhi remanded Chief Minister Arvind Kejriwal's aide Bibhav Kumar four days of judicial custody on Friday in connection with the alleged Swati Maliwal assault case.
He was produced before the court after five days of police custody.
Meanwhile, a bail application has also been moved on behalf of Bibhav Kumar. The court has listed the matter for hearing on Monday and sought a response from the Delhi police.
Metropolitan Magistrate Gaurav Goyal remanded Bibhav Kumar in judicial proceedings after hearing submissions of Delhi Police and defence counsels, Rajiv Mohan and Rajat Bhardwaj.
After producing Bibhav Kumar, Delhi police sought four days of judicial custody of him.
Additional Public Prosecutor (APP) Atul Srivastava submitted that during the investigation, DVR containing CCTV footage was seized and sent to an expert for analysis. An investigation is at the initial stage. Therefore the accused may be sent to judicial custody for four days.
Defence counsel Rajiv Mohan opposed the request for custody and argued that the custody depends on the necessity.
An application was also moved on behalf of the accused, Bibhav Kumar, to protect DVR seized during the investigation and place it on record.
APP Atul Srivastava opposed the application and submitted that this is not the stage for seeking a copy of CCTV footage This application may be dismissed, he added.
APP Srivastava also argued that the accused is not the occupier of CCTV. He submitted that the pen drive which was found blank, sent been to FSL.
It was also submitted that the seized DVR has been sent to an expert and a report is awaited.
Defence counsel Rajat Bhardwaj argued that police lied before the court to seek remand of the accused. How the Pen drive was found blank without consulting the expert.
The court has reserved the order on application for May 28.
On May 19, While granting five days of police custody of Bibhav Kumar, the court had observed, "The fact not finding of the video footage in pen-drive provided by the JE to the IO during course of the investigation and getting formatting of the mobile phone by the accused speaks in volume."
The court also noted the submissions of police that it is not the first criminal case against the accused. "Every investigation is a quest to find the truth and it is ultimate goal of every investigation," the court observed.
The court had noted that the case is at a nascent stage. Allegations made in the complaint/FIR is corroborated in her statement recorded by Learned. MM under section 164 Cr.P.C. on oath and further it is again corroborated in MLC of the victim/complainant.
The court also perused the case file as well as the case diaries.
While seeking the accused's police custody, Additional Public Prosecutor (APP) Atul Kumar Srivastava had submitted in brief that the case is a very serious case wherein a public figure and a sitting member of parliament has been brutally assaulted by the accused whose services has already been terminated in the last month itself.
He had further submitted that despite notice by the IO, the DVR containing the incident has not been provided. An officer of JE rank provided the CCTV footage in a pen drive but again when the same was checked, the video footage was blank at the relevant time.
Since the accused has access to the inside also so possibility of tampering has to be ascertained for which police custody remand is necessary, APP had submitted.
He further submitted that though the accused has produced his mobile phone iPhone he has disclosed that he got it formatted in Mumbai yesterday. The accused has not disclosed the password of the mobile phone as well as the other password of the apps installed on his phone.
"It is common that at the time of formatting the mobile phone, a person of ordinary prudence would also retain the clone copy or save his data in a separate hard-disk/computer," APP submitted.
So, the accused needs to be taken to Mumbai to ascertain all these facts regarding the formatting of his mobile phone and collect the deleted data.
Delhi police also submitted that the means of a weapon by which the complainant/victim was assaulted by the accused is to be recovered.
On the other hand, defence counsel Rajiv Mohan had opposed the custody application and submitted that the complainant is an educated lady and has lodged the complaint after a delay of three days.
He also argued that despite an allegation of being brutally assaulted by the accused, she has not opted to lodge the FIR immediately or get herself medically examined at the earliest.
It was further submitted that even if the allegation of prosecution is accepted for the sake of argument the offence of 308 IPC is not made out. He submitted that the accused has fundamental right not to disclose his mobile phone password to the investigating agency and as such he cannot be remanded to police custody for this purpose.
Defence Counsel Rajiv Mohan also submitted on behalf of the accused that the accused has got no access to the CCTV footage or the DVR as the same is under the control of the PWD Department of Government of NCT of Delhi.
Advocate Rajiv Mohan also raised the point of delay in filing of complaint.
He submitted that the complainant was having opportunity all the time right from the place of Occurrence to lodge the complaint, but has refused to do so.
As per his submissions, she has visited the police station of the area but did not lodge the complaint and she has now lodged the FIR belatedly after deliberation and concoctions.
On the other hand, APP argued that the investigation is at a nascent stage and FIR is not the encyclopedia of the case.
He further submitted that the police custody remand of the accused is very essential just to reach a logical conclusion.
He further submitted that it is a case of a grave nature, more particularly when a member of parliament who happens to be a lady has been assaulted brutally, which has been duly collaborated by contents of FIR and by her statement u/s 164 Cr.P.C.
He also said that the MLC of the victim was done in Jay Prakash Narayan Apex Trauma Centre, AIIMS Hospital.
The additional public prosecutor Atul Srivastava submitted that there are high chances of tempering of evidence.
He submitted that though the services of the accused have been terminated by the competent authority he has gone to the same spot again, where he has been working since 2015 and chances of him tampering with the evidence cannot be ruled out.
It was further submitted that, when questions have been put to him, he has given evasive answers and has not co-operated in the investigation.
APP also submitted that this is not the first criminal case against the accused rather he was found involved in a criminal case registered by Naida Police in 2007 in PS Sector-20, Noida, U.P. u/s 353 IPC, wherein also he assaulted a public servant.