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Maliwal assault case: Formatting phone, not finding of video speaks volume, says Court while granting police custody to Bibhav

New Delhi: While granting five days of police custody to Bibhav Kumar, the court observed that "the fact that the video footage was not found in the pendrive provided by the JE to the IO during the course of the investigation and the mobile phone was formatted by the accused speaks volumes."
The court also noted in the submissions of the police that this is not the first criminal case against the accused.
Metropolitan Magistrate (MM) Gaurav Goyal remanded Bibhav Kumar in police custody for 5 days after considering the submissions and documents placed on record by Delhi Police. The court felt it was necessary to grant police custody.
The court said in the order that the accused has to be taken to Mumbai and other parts of Delhi, which will not be possible without police custody remand.
"Considering the submissions made on behalf of both parties, I find there is necessity of police custody remand in this case. Accordingly, the application moved by the IO is partly allowed and the accused is remanded to police custody remand for a period of 05 days," MM Gaurav Goyal said in the order passed on May 19 at 12.45 AM.
"Every investigation is a quest to find the truth and it is ultimate goal of every investigation," the court observed.
However, the court has directed the investigation agency that accused shall not be subjected to any torture during the police custody.
Further, it permitted the accused to meet his advocates for half an hour daily between 6 PM and 7 PM during police custody.
Besides this, the accused shall also be permitted to meet his wife for half an hour daily during custody.
The court noted that the case is at a nascent stage. Allegations made in the complaint/FIR are corroborated in her statement, recorded by learned. MM under Section 164 Cr.P.C. on oath and further, it is again corroborated in the MLC of the victim/complainant.
The court also perused the case file as well as the case diaries.
The court also noted that the criminal antecedents have not been disputed by the defense counsels. He has also not disputed the fact that the services of the accused have been terminated.
I have also gone through the basic provisions of Section 41 A of Cr.P.C., which gives the IO discretion not to arrest a person if arrest is not necessary in the course of investigation or arrest him.
The MM said, "I find force in the arguments of learned Addl. PP that there were sufficient grounds to arrest the accused without notice."
While seeking police custody, Additional Public Prosecutor (APP) Atul Kumar Srivastava
submitted in brief that the case is a very serious case wherein a public figure and a sitting member of parliament have been brutally assaulted by the accused, whose services has already been terminated in the last month itself.
He further submits that, despite notice by the IO, the DVR containing the incident has not been provided. An officer of JE rank has provided the CCTV footage on a pendrive, but again, when the same was checked, the video footage was blank for the relevant time.
Since the accused has access to the inside, the possibility of tampering has to be ascertained, for which police custody remand is necessary, APP submitted.
He further submitted that the accused has produced his mobile phone, the iPhone but he has disclosed that he has got it formatted at Mumbai yesterday. The accused has not disclosed the password of the mobile phone as well as the other passwords of the apps installed in 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 weapon by which the complainant/victim was assaulted by the accused is to be recovered.
On the other hand, defence counsel Rajiv Mohan opposed the custody application and submitted that the complainant is an educated lady and has lodged the complaint after a delay of 3 days.
He also argued that, despite the 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 a 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.
Defense Counsel Rajiv Mohan also submitted on behalf of the accused that the accused has no access to the CCTV footage or the DVR as the same is under the control of the PWD Department of Government of the NCT of Delhi.
Advocate Rajiv Mohan also raised the point of delay in filing the complaint.
He submitted that the complainant was having opportunity all the time, right from the place of occurrence, to lodge the complaint but has ref used to do so.
As per his submissions, she visited the police station in 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 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 submitted that it is a case of grave nature, more particularly when a member of parliament who happens to be 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 in Jay Prakash Narayan Apex Trauma Centre, AIIMS Hospital.
The additional public prosecutor, Atul Srivastava, submitted that there are high chances of tempering the evidence.
He submitted that though the services of the accused has 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 Noida Police in 2007 in PS Sector-20, Noida, U.P. u/s 353 IPC, wherein he also assaulted a public servant.

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