Swati Maliwal assault case: Bibhav Kumar moves against charge sheet cognisance

New Delhi: Former chief minister Arvind Kejriwal's aide Bibhav Kumar has challenged before a Delhi court an order that took cognisance of the police's charge sheet against him for allegedly assaulting AAP MP Swati Maliwal.

Kumar is accused of assaulting Maliwal at the chief minister's official residence on May 13 and is currently on bail. A magistrate court took cognisance of the charge sheet against him on July 30.

October 29, Kumar's counsel Manish Baidwan filed the revision plea in a Tis Hazari sessions court arguing cognisance was taken in a "mechanical manner" under the repealed criminal procedure code instead of the new Bharatiya Nagrik Suraksha Sanhita (BNSS).

It said, "Cognisance requires consideration whether there is sufficient ground for proceeding further for taking action under subsequent provisions of the new BNSS, which is missing in the present case." The plea further claimed discrepancies on various grounds, including the final report being "defective".

"It is important to mention herein that during the investigation, important evidence like CCTV footage was obtained and seized, and a FSL report is still pending regarding the exhibits," it alleged.

While important evidence was not considered, the court passed the cognisance order only on the basis of an incomplete chargesheet, it added.

The plea alleged the trial court took cognisance on the basis of a "cryptic final report" and "failed to apply its judicial mind".

"The trial court failed in understanding that Section 506 of the IPC (criminal intimidation) has two parts -- punishable with imprisonment of two years or with a fine or with both and the other punishable with 7 years of imprisonment. The impugned order is silent on the fact whether cognisance has been taken on the first part of Section 506 IPC or the second part of the IPC provision...the impugned order is bad in law on this aspect," it claimed.

The charge sheet dated July 17 was filed under various IPC provisions, including Sections 201 (causing disappearance of evidence of offence), 308 (attempt to commit culpable homicide), 341 (wrongful restraint), 354 (assault or criminal force to a woman with intent to outrage her modesty), 354B (assault or use of criminal force against a woman with the intent to disrobe her), 506 (criminal intimidation) and 509 (insult caused to the modesty of a woman by the use of any words, gestures or object intending to the do the same).

The matter would be heard on November 16.