Ishrat Khilji vs State of M.P. and Others

Ms. Rekha Shrivastava, learned Counsel for the Petitioner. Shri A.S. Kutumbale, learned AAG for the Respondent-State on advance copy.

Petitioner Smt. Ishrat has filed this writ petition claiming a writ in the nature of Habeas Corpus on the allegations that her husband (Salim) is illegally detained in custody by the Respondent No. 5 since 10-7-2010 without passing any order on the bail application filed by Salim.

Matter was list for admission on 13-7-2010. Looking to the averments made in the Petitioner we directed Additional Advocate General to seek instructions and directed the case be listed today.

Today Additional Advocate General produced the original record of the proceeding for our perusal.

Perusal of record shows that the husband of Petitioner was arrested on 10-7-2010 and same day an Istgasa was filed before the S.D.M. (Executive Magistrate) u/s 41(2) and 110, Code of Criminal Procedure. The Executive Magistrate issued a show cause Notice and passed order u/s 111, Code of Criminal Procedure and pending enquiry directed him to furnish interim bond of Rs. 10,000/- with surety in like amount. Since the interim bond and surety was not furnished, therefore, husband of the Petitioner was detained in custody. The proceeding recorded on 10-7-2010 bears signature of the husband of the Petitioner. When the learned Counsel for the Petitioner was confronted with this fact, she was answerless and tried to wriggle out of the tight corner by denying signature of Salim. We are not satisfied with this bald denial because illustration (e) of Section 114 of the Evidence Act. The rule embodied in this illustration flows from the maxim omnia preaesuntrurite et solenniter esse acta i.e. all acts are presumed to have been rightly and regularly done (See Broom''s Legal Maxims 10th Edition).

Thus we find that pending an enquiry u/s 116, Code of Criminal Procedure the detention of husband of the Petitioner could not be said to be unlawful. It is settled law that when physical restraint is put upon a person under a law no writ petition for habeas corpus lies. Reliance on the decision reported in 1999(1) MPJR 451 is misplaced and does not advance the case of the Petitioner. In that case, this Court found that the reason for non-acceptance of surety was not a valid reason and rejection of bail bond and surety on flimsy grounds, the detention becomes without authority of law. As pointed out, in the case in hand, upon failure of the husband of the Petitioner to furnish interim bond with surety of the requisite amount, he was sent to custody. It is not a case of rejection of interim bond and surety of the requisite amount.

Thus we find no merit in this writ petition. The Executive Magistrate has already fixed the next date on 22-7-2010, therefore without touching the merits of the case we hope that enquiry would be completed expeditiously and shall pass the final order within a month from the date of receipt of certified copy of this order. In the meanwhile, if the husband of the Petitioner furnishes bond with surety as per order dated 10-7-2010, the Executive magistrate shall deal with the matter and pass an appropriate order as per law.

In view of the foregoing discussions, this writ petition fails and it is hereby dismissed with no order as to costs. Registry is directed to transmit forthwith duly authenticate copy of this order to the Executive Magistrate City, Indore for necessary compliance.