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CASE NO.: Appeal (crl.)  1201 of 2006

PETITIONER: Srikant

RESPONDENT: District Magistrate, Bijapur & Ors

DATE OF JUDGMENT: 22/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (CRL.) No.666 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment of the  Division Bench of the Karnataka High Court dismissing the  Habeas Corpus Petition filed questioning detention of his  brother Shri Shivalingappa (hereinafter referred to as the  ’detenu’) under the provisions of the Karnataka Prevention of  Dangerous Activities of Bootleggers, Drug Offenders,  Gamblers, Goondas, Immoral Traffic Offenders and Slum  Grabbers Act, 1985 (in short the ’Act’).  The detention order  was passed on 26.5.2005 by the District Magistrate holding  that the detenu was indulging in such activities which  amounted to immoral activities as detailed in the Act.  The  order of detention was approved by the State Government and  the Advisory Board. The main ground of challenge in the writ  petition was alleged non-compliance with the procedure  contemplated under Article 22(5) of the Constitution of India,  1950 (in short the ’Constitution’). It was specifically averred  that detaining authority has not provided the opportunity of  making representation and the right of the detenu to make  such representation was not made known to the detenu.  The  detaining authority and other respondents resisted the  petition on the ground that the appellant had already moved  the High Court by filing a writ petition i.e. W.P. (HC) No. 56 of  2005 and the same had been dismissed by order dated  6.10.2005 and there was no challenge to the same. It was  pointed out that the grounds taken in the Second Writ Petition  were identical to those taken in the earlier writ petition and/or  were available to be raised when the earlier writ petition was  filed. It was contended by the appellant before the High Court  that in view of the decision of this Court in Ghulam Sarwar  v.  Union of India and Ors. (AIR 1967 SC 1335) the Principle of  res judicata or constructive res judicata would apply only in  the case of civil actions and proceedings and do not bar  subsequent writ petition in the matter of habeas corpus  petition where personal liberty of citizen is involved. The High  Court found that though the successive writ petition can be  filed challenging the detention, yet it has to be shown that  fresh grounds were involved and not the grounds which were  already raised or were available to be raised.  Accordingly the  writ petition was dismissed.

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       Learned counsel for the appellant submitted that though  the petition had become infructuous by passage of time, the  issues of great importance were involved and the matter  should be decided on merits. It was submitted that by a series  of decisions it has been held that successive habeas corpus  petitions can be filed and the principle of res judicata or  constructive res judicata has no role to play.

       Learned counsel for the respondents submitted that in  the second writ petition no new ground was taken and since  points were already raised or were available to be raised  maintainability of the subsequent writ petition was ruled out.

The question relating to res judicata in habeas corpus  petition was considered by this Court in several cases.  In T.P.  Moideen Koya v. Govt. of Kerala and Ors. (2004 (8) SCC 106)  after reference to Gulam Sarwar’s case (supra) this Court held  as under : "This question was examined in considerable  detail by a Constitution Bench in Ghulam  Sarwar v. Union of India and Ors. (AIR 1967  SC 1335). In this case the petitioner who was  detained under Section 3 (2) (g) of the  Foreigners Act 1946 filed a petition for issuing  a writ of habeas corpus which was dismissed  by a learned Single Judge of the High Court  and the said judgment was allowed to become  final. Thereafter the petitioner filed a writ  petition under Article 32 of the Constitution in  the Supreme Court praying that he may be set  at liberty. Subba Rao, CJ, after referring to the  Daryao v. State of U.P. (supra), in Re Hastings  (2), 1958 3 All ER 625, in Re Hastings (3),  1959 1 All ER 698 and some other English and  American cases held, as under: "The principle of application of res  judicata is not applicable in Writ of  Habeas Corpus, so far as High  Courts are concerned. The  principles accepted by the English  and American Courts, viz., that res  judicata is not applicable in Writ of  Habeas Corpus holds good. But  unlike in England, in India the  person detained can file original  petition for enforcement of his  fundamental right to liberty before a  Court other than the High Court,  viz., the Supreme Court. The order  of the High Court in such a case will  not be res judicata as held by the  English and the American Courts  because it is either not a judgment  or because the principle of res  judicata is not applicable to a  fundamentally lawless order."  In Nazul Ali Molla etc. v. State of West Bengal  (1969 (3) SCC 698) the petitioners had  challenged their detention under Section 3 (2)  of the Preventive Detention Act by filing a writ  petition under Article 226 of the Constitution  before the Calcutta High Court, but the  petition was dismissed. Thereafter they filed a  writ petition under Article 32 of the  Constitution in this Court. The objections

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raised by the State regarding maintainability of  the petition was repelled and it was held that a  petition under Article 32 of the Constitution for  the issue of writ of habeas corpus would not be  barred on the principle of res judicata if a  petition for a similar writ under Article 226 of  the Constitution before a High Court has been  decided and no appeal is brought up to the  Supreme Court against that decision. Similar  view has been taken in Niranjan Singh v. State  of Madhya Pradesh (1972 (2) SCC 542). 11. The principle which can be culled out from  this authorities is that the bar of res judicata  or constructive res judicata would apply even  to a petition under Article 32 of the  Constitution where a similar petition seeking  the same relief has been filed under Article 226  of the Constitution before the High Court and  the decision rendered against the petitioner  therein has not been challenged by filing an  appeal in the Supreme Court and has been  allowed to become final. However, this  principle, namely, the bar of res judicata or  principles analogous thereto would not apply  to a writ of habeas corpus where the petitioner  prays for setting him at liberty. If a person  under detention files a writ of habeas corpus  under Article 226 of the Constitution before  the High Court and the writ petition is  dismissed (whether by a detailed order after  considering the case on merits or by a non- speaking order) and the said decision is not  challenged by preferring a Special Leave  Petition under Article 136 of the Constitution  and is allowed to become final, it would still be  open to him to file an independent petition  under Article 32 of the Constitution seeking a  writ of habeas corpus. It is well settled that a decision pronounced by  a Court of competent jurisdiction is binding  between the parties unless it is modified or  reversed by adopting a procedure prescribed  by law. It is in the interest of public at large  that finality should attach to the binding  decisions pronounced by a court of competent  jurisdiction and it is also in the public interest  that individuals should not be vexed twice over  with the same kind of litigation. While hearing  a petition under Article 32 it is not permissible  for this Court either to exercise a power of  review or some kind of an appellate  jurisdiction over a decision rendered in a  matter which has come to this Court by way of  a petition under Article 136 of the  Constitution. The view taken in Bhagubhai  Dullabhbhai Bhandari v. District Magistrate  (AIR 1956 SC 585) that the binding nature of  the conviction recorded by the High Court  against which a Special Leave Petition was  filed and was dismissed can not be assailed in  proceedings taken under Article 32 of the  Constitution was approved in Daryao v. State  of U.P. (supra) (see para 14 of the report)."

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       In Lallubhai Jogibhai Patel v. Union of India and Ors.  (AIR 1981 SC 728) it was noted as follows:

"The preliminary question, therefore, to be  considered is, whether the doctrine of  constructive res judicata applies to a  subsequent petition for a writ of habeas corpus  on a ground which he "might and ought" to  have taken in his earlier petition for the same  relief. In England, before the Judicature Act,  1873, an applicant for habeas corpus had a  right to go from court to court, but not from  one Bench of a court to another Bench of the  same Court. After the Judicature Act, 1873,  this right was lost, and no second application  for habeas corpus can be brought in the same  court, except on fresh evidence. In re Hastings  (No. 3) [1958] 3 All E.R. 625 Lord Parker, C.J.,  after surveying the history of the right of  habeas corpus, arrived at the conclusion that  it was never the law that in term time,  successive writs of habeas corpus lay from  Judge to Judge. In re Hastings (No. 4) [1959] 1  All E.R. 698. Harman, J. pointed out that since  the Judicature Act had abolished the three  independent courts, namely, the Court of  Exchequer, the King’s Bench Division, and the  Common Pleas, and had constituted one High  Court, when an application for writ of habeas  corpus has been disposed of by one Divisional  Court, no second application on the same  ground lies to another Divisional Court of the  High Court. This position was given statutory  recognition in the Administration of Justice  Act, 1960."          In the said case reference was also made to the earlier  decision in Gulam Sarwar’s case (supra).  The position was  finally summed up as follows:

"13. The position that emerges from a survey  of the above decisions is that the application of  the doctrine of constructive res judicata is  confined to civil actions and civil proceedings.    This principle of public policy is entirely  inapplicable to illegal detention and does not  bar a subsequent petition for a writ of habeas  corpus under Article 32 of the Constitution on  fresh grounds, which were not taken in the  earlier petition for the same relief."                  Whether any new ground has been taken, has to be  decided by the Court dealing with the application and no hard  and fast rule can be laid down in that regard. But one thing is  clear, it is the substance and not the form which is relevant.  If  some surgical changes are made with the context, substance  and essence remaining the same, it cannot be said that  challenge is on new or fresh grounds.    The appeal is accordingly disposed of.