![[Swati Maliwal Assault Case] "Fails to Exercise Judicial Discretion, Issues Mechanical Order": Bibhav Kumar Challenges Delhi Court's Cognizance of Chargesheet](https://i0.wp.com/lawchakra.in/wp-content/uploads/2024/06/image-23-1.png?fit=820%2C461&ssl=1)
Bibhav Kumar, accused of assaulting Swati Maliwal, has filed a challenge in court against the cognizance of the chargesheet. His defense argues that the court did not adhere to the proper procedures under the Bhartiya Nagrik Suraksha Sanhita, 2023, which became effective on July 1, 2024. Kumar seeks a review of the charges against him. The case is under judicial consideration.
New Delhi: Bibhav Kumar, an accused in the alleged assault case involving Swati Maliwal and a close associate of former Delhi Chief Minister Arvind Kejriwal, filed a revision petition challenging the cognizance of the charge sheet against him.
This petition is currently pending before the Tis Hazari Court. Advocate Manish Baidwan, who is representing Kumar, submitted the revision petition, which is scheduled to be heard by an Additional Sessions Judge on November 16.
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The case adjourned during the last hearing at the request of a proxy counsel.
On July 30, the Tis Hazari Court took cognizance of the charge sheet filed against Kumar. The Delhi Police submitted the charge sheet on July 16, in relation to the alleged assault on Swati Maliwal at the residence of the Delhi Chief Minister.
The plea argues,
“It is contended that the Trial Court, in passing the Impugned Order, failed to exercise its judicial discretion and instead issued the order in a mechanical manner, without properly considering the relevant law or following the procedure outlined in BNSS.”
The petition states that the Trial Court committed a serious legal error by following the procedure under the old Cr.P.C., as outlined in Section 190(1)(b) of the Cr.P.C., when taking cognizance of the case. This is despite the fact that the new Criminal Laws Procedure Code (CLP.C.), the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS), came into effect on July 1, 2024.
The petition argues that the Trial Court should have followed the procedure specified in Section 210 of BNSS, as the charge sheet in this matter was filed in the Trial Court on July 16, 2024. It further highlights that the Trial Court, even after taking cognizance, has continued to follow the procedure under the old Cr.P.C., as evidenced by the supply of copies of the charge sheet and other documents to the accused under Section 207 of the Cr.P.C., as reflected in the orders dated October 7 and October 15, 2024.
As a result, the petition claims that the cognizance order dated July 30, 2024, and all subsequent orders issued during the proceedings are legally flawed.
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Kumar, who arrested on May 18, has been granted bail. The cognizance of the charge sheet was taken by Judicial Magistrate First Class Gaurav Goyal. The Delhi Police has invoked multiple sections of the Indian Penal Code (IPC), including Sections 308, 354, 354B, 506, 509, 341, and 201.
The evidence includes Kumar’s mobile phone, a SIM card, and the DVR/NVR from CCTV cameras at the Chief Minister’s residence. The charge sheet, spanning 500 pages, includes testimony from 100 witnesses, with 50 of them being named in the case. The alleged assault took place on the morning of May 13 at the Chief Minister’s residence.
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