BIBHAV KUMAR vs STATE OF NCT OF DELHI
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th July, 2024
% Pronounced on: 02nd August, 2024
+ W.P.(CRL) 1827/2024
BIBHAV KUMAR
(Through Parokar)
S/o Shri Maheshwar Rai,
Presently in Police Custody,
Through Parokar
Mrs. Priyambada Kumari,
W/o Shri Bibhav Kumar,
R/o D-II, Chandrawal Water Work II,
Civil Lines, Delhi-11054 ….. Petitioner
Through: Mr. N. Hariharan, Sr. Adv. with Mr. Karan Sharma, Mr. Rajat Bhardwaj, Mr. Mohd. Irshad, Mr. Siddarth S. Yadav, Ms. Punya Rekha Angara & Mr. Sharian Mukherji, Advs.
versus
STATE OF NCT OF DELHI
Through its Standing Counsel,
Lawyers Chambers,
High Court of Delhi,
New Delhi ….. Respondent
Through: Mr. Sanjay Jain, Sr. Adv. with Mr. Sanjeev Bhandari, ASC for State and Mr. Atul Srivastawa, APP with Mr. Nishant Tripathiach, Mr. Akhanl Pratap Singh & Ms. Anvita Bhandari, Advocates with Ms. Anjitha Chepyala, Addl. DCP & Mr. Rajeev Kumar, SHO, P.S. Civil Lines, Delhi.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The petitioner has sought Declaration of his arrest by the respondent, as illegal being in violation of the provisions of Section 41 of Cr.P.C., 1973 and payment of compensation for his illegal arrest, by way of present Petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C., 1973).
2. The petition pertains to an unfortunate incident of 13.05.2024 when at about 09:00 A.M., Ms. Swati Maliwal, Member of Parliament from New Delhi from Aam Aadmi Party came to the residence of Honble Chief Minister at Civil Lines, Delhi for a meeting to which an objection was taken by the Security Officer on the ground that there was no prior appointment fixed as per the record. The respondent No.2, however, insisted on entering into the Chief Ministers residence and forcibly entered the Chief Ministers residence. According to the Petitioner, she also allegedly threatened the Security Officer that being a Member of Rajya Sabha, she has the powers to get him terminated or sent back on track, if he would not allow her to enter the Chief Ministers residence. She also claimed that she would file a complaint making allegations of having been physically assaulted and her modesty outraged. The Security Officer concerned about the security of Honble Chief Minister, informed the Petitioner about this entry of respondent No.2, who reached there at about 09:20 A.M. and requested her not to take law into her hand and refrain from extending threats, despite which she rushed towards him with an intent to physically assault him and also abused him as under:
Main tujhe dekhlungi…….. ******…….. main tujhe aese joothe case mei fasaungi kit u zindagi bhar jail me sadega….
Note The ***** portion is an unparliamentary/abusive language which was used by the Complainant and is not being disclosed herein for the sake of decency.
3. The entire incident happened in the presence of the Security Officers who were present throughout the day and was also recorded in the CCTV cameras.
4. The petitioner has asserted in his petition that complainant/respondent No. 2-Swati Maliwal, as a result of a well-thought strategy, gave a detailed complaint with an intent to falsely implicate the petitioner at the time close to the elections, with a view to cause harm to Honble Chief Minister. The FIR No. 0277/2024 dated 16.05.2024 was registered under Sections 308/341/354(B)/506/509 of the Indian Penal Code, 1860 Police Station Civil Lines, Delhi after three days of the alleged incident.
5. The petitioner filed a complaint with the Police against the complainant/respondent No. 2-Swati Maliwal on 17.05.2024 clearly detailing the facts to show that he had been falsely implicated by her. The petitioner had also informed the Station House Officer, Police Station Civil Lines, Delhi that he was willing to join the investigations.
6. The petitioner has further submitted that at around 12:05-12:10 P.M., the Police reached the house of Honble Chief Minister and took away the petitioner without supplying him with any copy of the Notice under Section 41A of Cr.P.C., 1973 and without making compliance of the procedure as has been laid down by the Apex Court in Arnesh Kumar vs. State of Bihar, ((2014) 8 SCC 273) and Amandeep Singh Johar vs. State of NCT of Delhi and Anr., (2018 SCC OnLine Del 13448).
7. The petitioner immediately thereafter, filed an Application dated 18.05.2024 at around 12:40-45 P.M. before the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi praying that the Police may be called upon to file a Status Report in regard to the compliance of Section 41A of Cr.P.C., 1973.
8. The petitioner, apprehending his arrest, also moved an application for grant of Anticipatory Bail under Section 438 of Cr.P.C., 1973 which was listed on the same day i.e., 18.05.2024 before the learned District and Sessions Judge, North, Tis Hazari Courts, Delhi for hearing. The petitioner also moved an Application before the learned Metropolitan Magistrate, to seek the copy of the FIR which was allowed vide Order dated 18.05.2024, despite which the copy of the FIR has not been made available to him till date.
9. The arguments were heard from 03:55 P.M. to 04:40 P.M. and the matter was reserved for Orders. In the interim at about 04:45 P.M., it was conveyed by the learned Additional Public Prosecutor to the learned District and Sessions Judge that the petitioner has been arrested at about 04:15 P.M. i.e., while the arguments were being addressed on the Anticipatory Bail Application.
10. It is claimed that the facts as narrated, clearly reflect the malice on the part of the investigating agency and its intent to make the Anticipatory Bail Application infructuous by showing the arrest of the petitioner, without there being any necessity.
11. Thereafter, the petitioner was produced before the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi on the same day i.e., 18.05.2024 at around 09:45 P.M. and an Application was filed for his police remand for a period of seven days. The petitioner contested the remand Application by filing an Application seeking the rejection of the Remand Application on the ground of non-compliance of Section 41A of Cr.P.C., 1973. The Remand Application however, was allowed and the petitioner was remanded to the judicial custody for five days i.e., till 24.05.2024, vide Order dated 18.05.202. Thereafter, the petitioner was also remanded to the judicial custody for four days, on an Application dated 24.05.224 filed by the Police on 24.05.2024.
12. Moreover, the Anticipatory Bail Application dated 18.05.2024 was also disposed of by the learned Metropolitan Magistrate as infructuous vide Order dated 18.05.2024.
13. The regular Bail Application was filed by the petitioner on 24.05.2024, but the same was dismissed vide Order dated 27.05.2024.
14. On 28.05.2024, the Police moved an Application seeking the police custody of the petitioner which was allowed by the learned Metropolitan Magistrate vide Order dated 28.05.2024, sending the petitioner to the Police Custody for a period of three days.
15. The petitioner has thus, made the prayer that his arrest be declared as illegal and he be awarded compensation.
16. The respondent No. 1 in its Status Report dated 06.07.2024 has explained that all the requirements of law were duly complied with while arresting the petitioner on 18.05.2024. The Arrest Memo had been duly drawn disclosing the grounds of arrest and the petitioner had been produced before the learned Metropolitan Magistrate on the same day of arrest i.e., 18.05.2024 and all the guidelines laid down in the case of Arnesh Kumar, (supra) were duly and faithfully complied with.
17. It is further submitted that since the circumstances as contemplated under Section 41 Cr.P.C., 1973 were found to be existing, the Additional Deputy Commissioner of Police who was conducting the investigations, arrested the under Section 41(1) of Cr.P.C., 1973. It was also contended that a Bail Application on the same grounds as agitated in the present petition, has already been filed.
18. In the second Status Report dated 29.06.2024, it was further stated that two regular Bail Applications filed by the petitioner, have also been dismissed vide Orders dated 27.05.2024 and 07.06.2024 respectively by the learned Additional Sessions Judge by reasoned Orders dealing with all the aspects and contentions raised by the petitioner. No new grounds have been agitated in the present petition.
19. In the end, the present petition has been vehemently opposed on behalf of the State, and it is argued that considering the seriousness of the matter, initial stage of investigation, capability of the accused to influence the witnesses and of tampering the evidence coupled with the fact that there is an antecedent of pending trial of the accused, the present petition must be rejected.
20. Learned Senior Advocate on behalf of the petitioner has argued that the petitioner was present at the premises in discharge of his official duties and had merely tried to question the entry of the complainant/respondent No. 2-Swati Maliwal at the residence of Honble Chief Minister, purely because there was no prior appointment. However, the petitioner has been victimised by the Police, who, on the false complaint of complainant/respondent No. 2-Swati Maliwal, had arrested him illegally without complying with the mandate of Section 41A as has been laid down in the cases of Arnesh Kumar (supra) and Amandeep Singh Johar (supra).
21. Further reliance has been placed on Satender Kumar Antil vs. CBI, ((2022) 10 SCC 51), Rakesh Kumar vs. Vijayanta Arya, (2021 SCC OnLine Del 5629), Chanda Deepak Kochhar vs. CBI, (2023 SCC OnLine Bom 72), Kavita Manikikar of Mumbai vs. CBI, (2018 SCC OnLine Bom 1095), Madhu Limaye and Ors, ((1969) 1 SCC 292), Pankaj Bansal vs. Union of India & Ors., (SLP (Crl.) Nos. 9220-21/2023) decided on 03.10.2023 by the Apex Court, Arvind Kejirwal vs. Directorate of Enforcement, (Criminal Appeal No. 2493/2024) decided on 12.07.2024 by the Apex Court, Prabir Purkayastha vs. State (NCT of Delhi), (Criminal Appeal No. Diary No. 42896/2023) decided on 15.05.2024 by the Apex Court, Sh. Mukhter Ahamed vs. State of NCT of Delhi, (BAIL APPLN. 720/2022) decided on 10.03.2022 by the Co-ordinate Bench of Delhi High Court, Satinder Kumar Antil vs. Central Burear of Investigations and Another, ((2022) 10 SCC 51) and Paramvir Singh Saini vs. Baljit Singh, ((2021) 1 SCC 184).
22. Learned Senior Advocate on behalf of the petitioner has further submitted that there was no assault of any kind committed on the complainant/respondent No. 2-Swati Maliwal as is evident from the CCTV footage of the entire incident; in fact, the staff and other persons were also present aside from the petitioner at the time of alleged incident. From the CCTV footage, it is evident that no assault of any kind was committed on the complainant/respondent No. 2-Swati Maliwal as claimed by her in her well-thought complaint.
23. It is vehemently submitted that non-compliance of Section 41A of Cr.P.C., 1973 makes his arrest illegal which entitles him to grant of compensation.
24. Learned Senior Advocate on behalf of the respondent No. 1-State, on the other hand, has denied that there was any haste in the arrest of the petitioner. The Police had visited the premises of Honble Chief Minister on 16.05.2024 and 17.05.2024 and also collected the forensic evidence. The petitioner, after his arrest, had been duly furnished with the remand paper containing all the grounds for seeking remand, and sufficient time was given to the petitioner to meet the grounds stated in the Remand Application. The petitioner even filed his Reply/ Application challenging the grounds for remand detailed in the application. The learned Metropolitan Magistrate considered all the aspects and permitted the judicial custody of the petitioner by a detailed Order.
25. During investigations, it had been found that the mobile phone had been reformatted by the petitioner and he had also tampered the CCTV footage on account of which Section 201 of Cr.P.C., 1973 has been added in the FIR subsequent to the registration of aforementioned FIR.
26. In the end, learned Senior Advocate on behalf of the respondent No. 1-State has submitted that the arrest of the petitioner has been done in accordance with the provisions of Cr.P.C., 1973 and in compliance of guidelines laid down by the Apex Court time and again in the various judgments.
27. Therefore, it is submitted that the present petition is without merit and is liable to be dismissed.
28. Submissions heard.
29. The liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law observed the Apex Court in the case of Arnab Manoranjan Goswami vs. State of Maharashtra, ((2021) 2 SCC 427).
30. The Apex Court and the other High Courts in India through their judgements, have time and again reiterated the exalted status of the Right to Liberty as enshrined in Article 21 of the Constitution of India. The various provisions of Cr.P.C., 1973, especially in regard to the arrest and the trial, have been designed essentially by keeping in mind to ensure that the liberty of an individual is not violated, except by due process of law.
31. The Code of Criminal Procedure, 1973 classifies the offences as cognizable and non-cognizable. Section 41(1) of Cr.P.C., 1973 defines the procedure to be followed for arrest of any person without a warrant for an offence which is punishable with an imprisonment for a term which may extend upto seven years.
32. However, exercise of this power is bridled by the conditions as encapsulated in Section 41(1)(b)(i) of Cr.P.C., 1973 which provides that on receiving the reasonable complaint or credible information or there being a reasonable suspicion about the commission of an offence, the arrest be made if the Police Officer is satisfied that his arrest is necessary: (i) to prevent the person from committing any further offence, (ii) proper investigation, (iii) from causing the evidence of the offence to disappear, (iv) to prevent such person from making threat, inducement of promise or such person or presence of such person cannot be ensured in the Court whenever required unless such person is arrested.
33. The facts of this case may now be considered to ascertain whether the arrest of the petitioner on 18.05.2024 was made after due compliance of Section 41(1) of Cr.P.C., 1973.
34. Admittedly, the incident at the residence of Honble Chief Minister took place in the morning of 13.05.2024, when the complainant/respondent No. 2-Swati Maliwal, apparently without an appointment, sought to meet the Honble Chief Minister at his residence, but she was prevented and resisted by the Security Officers and thereafter, by the petitioner who, according to the complainant/respondent No. 2-Swati Maliwal, physically assaulted her and outraged her modesty. The complaint was made after three days on 16.05.2024.
35. According to the Police, they had visited the premises of Honble Chief Minister on 16.05.2024 and 17.05.2024, but the petitioner was in Mumbai and he was not found available. In the interim, the Police sought the forensic evidence by way of CCTV footage of the place of incident which was provided by the Junior Engineer, but it turned out to be a blank CCTV footage. Subsequently, the CCTV footage has been provided but the same is claimed to have been found to be tampered.
36. The Police suspecting the tampering of evidence, arrested the petitioner on 18.05.2024 on his return from Mumbai. It is because of the status of the people involved in the present case, the investigation was taken over by the Deputy Commissioner of Police herself who, in the given circumstances, brought the petitioner to the Police Station for effective and extensive interrogation and arrested him at about 04:15 P.M. on the grounds for the reasons as mentioned in the Arrest Memo dated 16.05.2024 which are as under: –
To prevent the petitioner from committing any further evidence for proper investigations,
For preventing the petitioner from causing the evidence to disappear or tamper with such evidence,
To make any inducement or threat to any person acquainted with the facts of this case.
37. On the aforesaid grounds, after the arrest of the petitioner, he was subjected to extensive interrogation and thereafter, he was produced before the learned Metropolitan Magistrate on the same day i.e., 18.05.2024 at around 09:00 P.M. in compliance of the requirements of Cr.P.C., 1973.
38. The Remand Application dated 18.05.2024 in detail, records t that the Junior Engineer admittedly did not have any access to inside of the residence and one video footage of the drawing room in a pen drive was provided by him but when it was played, it was found blank. It further recorded that the answers given by the petitioner during the interrogation were evasive and non-cooperative.
39. The respondent had further stated in their Application that petitioner had been appointed as the Private Secretary to Honble Chief Minister on co-terminus basis vide GAD Order No. 269 dated 27.02.2015 and the same has been terminated by the Competent Authority vide Order dated 19.04.2024. The petitioner, despite his termination, was found to continue to work in the premises and he was unable to give any answer to explain his authority under which he continued to work.
40. Furthermore, the petitioner has criminal antecedent as there is a criminal case bearing Crime No. 557, Police Station Sector 20, NOIDA, Uttar Pradesh, which is still a pending trial against him.
41. The petitioner during his visit to Mumbai, as per his own statement, got the mobile phone reformatted and that he was necessarily required to be taken to Mumbai, to recover the data to confirm the factum of formatting of the mobile.
42. Aside from giving the aforesaid reasons which fall within Section 41(1)(b) of Cr.P.C., 1973 justifying the arrest of the petitioner, the Application further gave the reasons why the Police Custody of the petitioner was sought. Not only the CCTV footage coverage was sought to be recovered but considering his position, it was also apprehended that he may influence the persons who are aware of the commission of offence and he may induce or extend threat to them.
43. Pertinently, the copy of the Remand Application was made available to the petitioner before it was considered by the learned Metropolitan Magistrate, to which a Reply/ Application was also filed by the Petitioner before the remand Application was considered.
44. It was after hearing the petitioner as well as the State, that the learned Metropolitan Magistrate in its Order dated 18.05.2024, considered all these aspects and also observed that the provisions of Section 41(1) of Cr.P.C., 1973 which give a discretion to the Investigating Officer to not arrest the person if not necessary during the investigation. However, in the present circumstances, there existed sufficient grounds of arrest of the accused-petitioner without Notice and granted five days Police Custody.
45. It may also be observed that vide Order dated 12.07.2024, the Co-ordinate Bench of this Court, while dismissing the bail petition of the petitioner being BAIL APPL. 2096/2024 titled Bibhav Kumar vs. State of NCT of Delhi, has also made a reference to suppression of crucial evidence since only selective CCTV footage at Chief Minister Residence-cum-Office was handed over and the mobile phone was reformated by the petitioner, which reflected an effort to conceal vital evidence as message was alleged to have been forwarded the complainant/respondent No. 2-Swati Maliwal to the petitioner through WhatsApp on reaching the Chief Ministers Office.
46. The facts as detailed, clearly establish that the arrest was necessary in the given circumstances and has been made in strict compliance of Section 41 of Cr.P.C., 1973 by following the principles/guidelines as time and again laid down and emphasised by the Apex Court in the judgments relied upon by the petitioner.
47. In view of the foregoing discussion, there is no merit in the present petition which is hereby dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
AUGUST 02, 2024
S.Sharma
W.P.(CRL) 1827/2024 Page 13 of 13