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Poonam Tiwari vs The State (Nct Of Delhi) on 6 July, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 6th July , 2018

+ W.P.(CRL) 1732/2018
POONAM TIWARI ….. Petitioner
Represented by: Mr. M.S. Yadav, Mr. Ashok
Tobria, Ms. Mamta Singh
Shukla and Mr. S.Y. Urmani,
Advocates.
versus
THE STATE (NCT OF DELHI) ….. Respondent
Represented by: Mr. Rahul Mehra, Standing
Counsel with Mr. Jamal
Akhtar, Advocate with Insp.
Ramkishan, PS Sagarpur.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A. No. 10697/2018 (Exemption)
Allowed, subject to all just exceptions.

W.P.(CRL) 1732/2018

1. By this petition, the petitioner prays as under:-

I. Issue a writ in the nature of Mandamus or any other
appropriate Writ(s) or Direction(s) or Order(s) of similar
nature thereby issuing guidelines that proceeding under
Section 82 Cr.p.c. can not be initiated other than sections
mentioned in Section 82 Sub-Section(4) of Cr.p.c.

II. Pass a direction to the Commissioner of Delhi Police to
issue direction/guideline to Delhi police to follow the
provisions laid down by the Law.

III. Action should be taken against the police officer who had
manipulated the investigation and who had misguided

W.P.(CRL) 1732/2018 Page 1 of 5
and given false and wrong Statement/Status Report
before the Hon’ble High Court and Ld. Trial Court.
IV. Release the petitioner/co-accused as she had been
illegally taken into custody and in judicial Custody since
42 days without following the due process of Law.

2. The grievance of the petitioner in nutshell from the contents of
the petition as stated is that though FIR No. 261/2016 under Sections
498A/304B/34 IPC was registered on 24th April, 2016 and her son
Chandan Tiwari was arrested on the same day, the petitioner was
never summoned as an accused. Even in the chargesheet filed against
the petitioner’s son on 22nd July, 2016 the petitioner was not kept in
column No. 11 nor any legal proceedings initiated against her on
record. Even in the committal order there was no mention of the
petitioner. Charge against the main accused was framed on 27 th
August, 2016 mentioning that co-accused Poonam Tiwari was
absconding but again the petitioner did not know her status. It is
further stated that the son of the petitioner filed a bail application
before this Court which came up for hearing on 31 st October, 2017
wherein it was mentioned that co-accused, Poonam Tiwari, was still
absconding and the process under Section 82 Cr.P.C. has been
initiated against her and the consequent proceedings for declaring
proclaimed offender is pending before the Trial Court.

3. Learned counsel for the petitioner contends that on the Court
record there were no proceedings pending actually and the petitioner
was illegally declared a proclaimed offender. A perusal of the paper
book filed by the petitioner and the status report reveals that since the
petitioner was not available and was absconding proceedings under

W.P.(CRL) 1732/2018 Page 2 of 5
Section 82 Cr.P.C. were initiated against the petitioner. It is nowhere
stated that the petitioner was declared a proclaimed offender under
Section 82 Cr.P.C.

4. It is well settled that for declaring a proclaimed offender under
Section 82 Cr.P.C. police has to first justify that despite the efforts to
arrest, the person is evading the arrest. In this regard non-bailable
warrants were issued by the learned Metropolitan Magistrate which
were sought to be executed, on which reports were submitted. Before
the petitioner could be declared proclaimed offender under Section 82
Cr.P.C. the petitioner filed an application seeking anticipatory bail
before the learned Additional Sessions Judge wherein the trial against
her son was going. In the application for anticipatory bail vide order
dated 16th January, 2018 the learned Additional Sessions Judge
directed ” In this matter the trial is already going on in this Court and
the said matter is now listed for 16th February, 2018, so bail matter is
also fixed for the same date, till then no coercive steps shall be taken
by Investigating Officer against applicant/accused”.

5. Since an interim protection was granted to the petitioner by the
learned Additional Sessions Judge vide order dated 16th January, 2018
the petitioner was made to join the investigation and a chargesheet qua
her without arresting her was filed as is evident from the document of
the Investigating Officer dated 9th February, 2018 annexed as
Annexure-K at page 109 of the paper book. Since the learned
Additional Sessions Judge had granted interim protection to the
petitioner, the learned Metropolitan Magistrate on 19 th March, 2018
dropped proceedings under Section 82 Cr.P.C. as the petitioner had

W.P.(CRL) 1732/2018 Page 3 of 5
already joined the investigation. On 10th April, 2018 the learned
Additional Sessions Judge dismissed the anticipatory bail application
of the petitioner whereafter she surrendered and was sent to judicial
custody.

6. Contention of learned counsel for the petitioner that since
chargesheet was filed without arrest, there was no justification in
keeping her in custody deserves to be rejected for the reason the
chargesheet was filed when there was an interim protection in favour
of the petitioner and even if the police officer required the custodial
interrogation he could not have resorted to the same.

7. Further the contention of learned counsel for the petitioner that
proceedings in two courts could not have gone though simultaneously
also deserves to be rejected for the reason the learned Metropolitan
Magistrate is the Court of original jurisdiction where the chargesheet
is required to be filed whereafter committal is done to the Court of
learned Additional Sessions Judge and since no chargesheet was filed
against the petitioner and no investigation could be carried out against
her for want of joining the investigation, non-bailable warrants were
required to be got issued from the Court of Learned Metropolitan
Magistrate. Thus non-bailable warrants were sought from the learned
Metropolitan Magistrate by the police officer in accordance with law
on an application seeking process under Section 82 Cr.P.C. which
were dropped on 19th March, 2018 as the petitioner had joined the
investigation. The second proceedings were on the anticipatory bail
application filed by the petitioner before the learned Additional
Sessions Judge which was decided independently and dismissed on

W.P.(CRL) 1732/2018 Page 4 of 5
10th April, 2018. The two proceedings cannot be clubbed together.
The petitioner is in custody since the date of surrender i.e. 10 th April,
2018 and as noted the procedure adopted by the investigating agency
is in accordance with law, thus, no case is made out for issuing any
guidelines or holding that any misguided or wrong statement/status
report was filed before this Court or that the custody of the petitioner
is illegal.

8. Petition is dismissed.

(MUKTA GUPTA)
JUDGE
6TH JULY , 2018
‘yo’

W.P.(CRL) 1732/2018 Page 5 of 5

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