Lallubhai Jogibhai Patel Vs. Union of
India & Ors  INSC 234 (15 December 1980)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 728 1981 SCR (2) 352 1981
SCC (2) 427
CITATOR INFO :
R 1981 SC1621 (8) RF 1981 SC2084 (1) R 1982
SC1500 (8) RF 1990 SC 605 (6)
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act 1974-Section 3-Scope of-Detenu if could
file a second petition for writ of habeas corpus after dismissal of the first
petition-First petition, if operates as constructive res
judicata-Constitutional imperatives under Art 22(5)- What are.
Constructive res judicata-Grounds not taken
in earlier petition for writ of habeas corpus-Second petition if barred by
constructive res judicata-If applicable in illegal detentions.
Words and phrases-Commnunicate-Meaning
of-Explaining the grounds of detention without giving them to the detenu in
writing-If amounts to communication.
After dismissal by this Court of the petition
impugning the order of his detention under section 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 the
petitioner filed the present petition urging additional grounds which were not
urged in the previous petition. He alleged that (i) despite his request for the
supply of all the documents relied upon by the detaining authority while
passing the order of detention the respondent failed to do so; (ii) that many
of the documents were either incomplete or had been wholly withheld and in
particular 236 documents out of 460 documents purported to have been supplied
to him were not supplied;
(iii) that though his representation dated
July 17, 1980 for revocation of the detention order was forwarded by the jailer
to the Central Government it had not been disposed of and (iv) that lastly
serving the grounds of detention in English which is a language not known to
him, without supplying a translation in his mother tongue, was a breach of the
constitutional imperative embodied in Art. 22(5) and that for these reasons the
order of detention should be held void.
A preliminary objection was raised on behalf
of the respondent State that the present petition was barred as constructive
Overruling the preliminary objection,
HELD: In the present petition fresh
additional grounds had been taken by the detenu to challenge the legality of
his continued detention. Therefore the subsequent writ petition is not barred
as res judicata. [359 B-C]
1. By a long line of decisions this Court has
held 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 in-applicable to illegal detentions and does not bar a
subsequent petition for the writ of habeas corpus 353 under Art. 32 of the
Constitution on fresh grounds which were not taken in the earlier petition for
the same relief.
[359 A-B] Ghulam Sarwar v. Union of India
& Ors.  2 S.C.R.
271, Daryao v. State of Uttar Pradesh A.I.R.
1457= 1 S.C.R. 574, Niranjan Singh v.
State of Madhya Pradesh  1 S.C.R. 691 and Calcutta Gas Co.
(Proprietary) Ltd. v. State of West Bengal,
A.I.R. 1965 S.C.
2(a). One of the constitutional imperatives
embodied in Art 22(5) of the Constitution is that all the documents and
materials relied upon by the detaining authority in passing the order of
detention must be supplied to the detenu as soon as practicable to enable him
to make an effective representation. [360 G] In the instant case the materials
and documents which were not supplied to the detenu were a part of the basic facts
and materials which should have been supplied to him, ordinarily within 5 days
of the order of detention and for exceptional reasons to be recorded, within 15
days of the commencement of the detention. The respondent did not state that
the documents which were not supplied were not relevant to the case of detenu.
[362 C] Smt. Icchu Devi Choraria v. Union of India & Ors.
 1 SCR 640 applied.
(b) In the first petition no specific ground
was taken by the detenu that documents covering 236 pages relied upon by the
detaining authority were suppressed and not supplied to him. He had now stated
that he had come to know about the non-supply of these documents from the
judgment of the Gujarat High Court which was subsequent to the dismissal of his
earlier petition. This assertion has remained unchallenged. [360 E-F] (c) In
matters touching the personal liberty of a person preventively detained, the
constitutional imperative in Art. 22(5) is that any representation made by the
detenu should be dealt with the utmost expedition which in this is has been
honoured in breach. [362 E] (d) Merely explaining the grounds of detention in
the mother tongue of the detenu would not be sufficient compliance with the
mandate of Art. 22(5) which requires that the grounds of detention must be
communicated to the detenu. "Communicate" is a strong word. It means
that sufficient knowledge of the basic facts constituting the grounds should be
imparted effectively and fully to the detenu in writing in a language understood
by him. Its whole purpose is to enable him to make a purposeful and effective
representation. If the grounds are only verbally explained without giving them
to him in writing in a language that he understands, its purpose is not served
and the constitutional mandate is infringed. [362G-H] Haribandhu Das v.
District Magistrate Cuttack & Anr.
 1 S.C.R. 227. Smt Razia Umar Bakshi v.
Union of India  3 S.C.R. 1398 and Harikisan v. State of Maharashtra
 Supp. 2 S.C.R. 918 followed.
ORIGINAL JURISDICTION: Writ Petition No. 4349
(Under Article 32 of the Constitution.) 354
M/s. Ram Jethmalani, Anil Dewan, Harjinder Singh and S. H. Sajanwala, for the
J. L. Nain, Sushil Kumar and M. N. Shroff for
The Judgment of the Court was delivered by
SARKARIA, J.- By our order dated October 3, 1980, we had allowed this writ
petition for the issue of a writ of Habeas Corpus and directed the release of
the detenu. We are now giving the reasons in support of that order.
On January 30, 1980, the petitioner,
Lallubhai Jogibhai Patel was served with an order of detention, dated January
30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of
Gujarat (Home Department) under Section 3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the
The grounds of detention were also served on
him on the same day. The petitioner challenged the order of his detention by
Writ Petition No. 449 of 1980 in this Court.
That petition was dismissed by this Court by
an order dated May 9, 1980, but the reasons for that order were announced later
on August 4, 1980. After the dismissal of his petition, he on July 21, 1980,
filed additional grounds. He was on July 30, 1980, informed that he may, if so
advised, file a fresh petition on those additional grounds. That is how this
subsequent petition came to be filed on additional grounds which were not urged
in the previous Writ Petition 449 of 1980.
A preliminary objection was raised on behalf of
the respondent State that this subsequent petition is barred as constructive
res judicata. In this connection, reference has been made to the decision of
this Court in Ghulam Sarwar v. Union of India & Ors. and Seervai's
In reply, Shri Ram Jethmalani, counsel for
the petitioner, contended that this Court cannot refuse to entertain a second
petition for habeas corpus on a fresh ground which could not, for good reasons,
be taken in the earlier writ petition, on the ground that it is barred by any
doctrine of estoppel or constructive res judicata. It is stressed that a
preventive detention illegally continued is a continuous wrong and furnishes a
continuous cause of action to the detenu to challenge the same on fresh
In this connection, reference has been 355
made to a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal
v. District Magistrate, Delhi. On facts, counsel has tried to distinguish the
decisions of this Court in Daryao v. State of Uttar Pradesh and Niranjan Singh
v. State of Madhya Pradesh.
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) 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 Hostings (No. 4). 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 a Full Bench decision of the Punjab High
Court, which purports to follow these English decisions and two decisions of
this Court in Daryao v. State of U.P. (ibid) and Calcutta Gas Co. (Proprietary)
Ltd. v. State of West Bengal, it was held as follows:
"No second petition for writ of habeas
corpus lies to the High Court on a ground on which a similar petition had
already been dismissed by the Court.
However, a second such petition will lie when
a fresh and a new ground of attack against the legality of detention or custody
has arisen after the decision on the first petition, and also where for some
exceptional reason a ground has been omitted in an earlier 356 petition, in
appropriate circumstances, the High Court will hear the second petition on such
a ground for ends of justice. In the last case, it is only a ground which
existed at the time of the earlier petition, and was omitted from it, that will
be considered. Second petition will not be competent on the same ground merely
because an additional argument is available to urge with regard to the
same." In Daryao's case (ibid), Gajendragadkar, J. (as he then was),
speaking for the Constitution Bench, held that where the High Court dismisses a
writ petition under Article 226 of the Constitution after hearing the matter on
the merits on the ground that no fundamental right was proved or contravened or
that its contravention was constitutionally justified, a subsequent petition to
the Supreme Court under Article 32 of the Constitution on the same facts and
for the same reliefs filed by the same party would be barred by the general
principle of res judicata. It was further clarified that the rule of res
judicata, as indicated in Section 11 of the Code of Civil Procedure, has no
doubt some technical aspects, for instance, the rule of constructive res
judicata may be said to be technical; but the basis on which the said rule
rests is founded on considerations of public policy. It is in the interest of
the public at large that a finality should attach to the binding decisions
pronounced by Courts 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. If these two principles form the foundation of the general rule of
res judicata, they cannot be treated as irrelevant or inadmissible even in
dealing with fundamental rights in petitions filed under Article 32. It was also
noted that the liberty of the individual and the protection of his fundamental
rights are the very essence of the democratic way of life adopted by the
Constitution, and it is the privilege and the duty of this Court to uphold
those rights. Though a right is given to the citizen to move this Court by a
petition under Article 32 and to claim an appropriate writ against the
unconstitutional infringement of his fundamental rights, yet, in dealing with
an objection based on the principle of res judicata may even apply to a
successive petition. The Court was careful enough to add: "We propose to
express no opinion on the question as to whether repeated applications for
habeas corpus would be competent under our Constitution.
That is a matter with which we are not
concerned in the present proceedings".
It may be noted that the petitions which were
before the Court in Daryao's case were civil matters and not petitions for
issue of a writ of habeas corpus. Even so, it was clarified in that case that
the 357 principle of constructive res judicata, as embodied in Section 11 of
the Code of Civil Procedure, was of a technical character and this principle
was not one of universal application.
In Ghulam Sarwar's case (ibid), the
Constitution Bench of this Court was dealing with a petition under Article 32
of the Constitution which had raised the question of the validity of the
detention of the petitioner under Section 3 of the Foreigners Act, 1946. The petitioner
was a Pakistani national, who entered India without any travel documents. On
May 8, 1964, he was arrested in New Delhi by the Customs Authorities under
Section 135 of the Customs Act, 1962. When he was about to be enlarged on bail,
he was detained by an order under Section 3(2)(g) of the Foreigners Act. It was
said that he had to be detained, as police investigation was in progress in
respect of a case of conspiracy to smuggle gold, of which he was a member. On
May 29, 1965, he was convicted by the Magistrate, of an offence under the Customs
Act and sentenced to imprisonment. His appeal was dismissed by the Sessions
Judge. Before his term of imprisonment expired, the petitioner filed a writ of
habeas corpus in the Circuit Bench of the Punjab High Court, challenging his
detention. The petition was dismissed by Khanna, J., on merits. Before the
learned Judge, the constitutional validity of Section 3(2) (g) of the Act was
The learned Judge held that the section
authorised the Government to make the said order of detention on its subjective
satisfaction and that the Court could not question its validity in the absence
of any mala fides. In short, he dismissed the petition on merits. Thereafter,
Ghulam Sarwar filed a petition under Article 32 of the Constitution for issue
of a writ of habeas corpus against the respondent on the ground that the
provisions of the Act were invalid. On behalf of the respondents, a preliminary
objection was raised that the decision of Khanna, J. of the Punjab High Court
operated as res judicata and barred the maintainability of the subsequent
petition under Article 32.
Reliance was placed on the decision of this
Court in Daryao's case. After observing that Daryao's case was no authority in
regard to the repeated applications for habeas corpus, and examining English
and American decisions, the learned Chief Justice (Mr. Justice Subba Rao)
summed up the position, thus:
"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, namely, this Court.
The order of the High Court in the said writ is not res judicata as held by the
English and the 358 American Courts either because it is not a judgment or
because the principle of res judicata is not applicable to a fundamentally
lawless order. If the doctrine of res judicata is attracted to an application
for a writ of habeas corpus, there is no reason why the principle of
constructive res judicata cannot also govern the said application, for the rule
of constructive res judicata is only a part of the general principle of the law
of res judicata, and if that be applied, the scope of the liberty of an
individual will be considerably narrowed. The present case illustrates the
Before the High Court, the petitioner did not
question the constitutional validity of the President's order made under
Article 359 of the Constitution. If the doctrine of constructive res judicata
be applied, this Court, though it is enjoined by the Constitution to protect
the right of a person illegality detained, will become powerless to do so. That
would be whittling down the wide sweep of the constitutional protection, On
these premises, it was held "that the order of Khanna, J., made in the
petition for habeas corpus filed by the petitioner does not operate as res
judicata and this Court will have to decide the petition on merits".
In his concurring judgment, Bachawat, J.,
while holding that the order of dismissal by the High Court does not operate as
res judicata and does not bar the petition under Article 32 of this Court,
asking for the issue of a writ of habeas corpus on the same facts, clarified
that the petitioner would not have the right to move this Court under Article
32 more than once on the same facts.
In Niranjan Singh's case (supra), the
District Magistrate of Gwalior by his order dated May 26, 1971, passed under
Section 2A of the Madhya Pradesh Public Security (Amendment Act) of 1970,
detained the petitioner.
The petitioner filed a writ petition under
Article 226 of the Constitution, challenging his detention and praying for a
writ of habeas corpus. The petition was rejected by the High Court. Thereupon,
the detenu moved this Court by a petition under Article 32 of the Constitution,
for the same relief. A preliminary objection was taken on behalf of the
respondent that the petition was barred by res judicata.
Following the earlier decision of this Court
in Ghulam Sarwar's case (ibid). Jaganmohan Reddy, J., speaking for a Bench of
two learned Judges, over-ruled this objection.
359 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.
In the present petition fresh additional
grounds have been taken, to challenge the legality of the continued detention
of the detenu. We would therefore hold that the subsequent writ petition is not
barred as res judicata and over-rule the preliminary objection raised by the
The additional grounds which have been
pressed into arguments by Shri Ram Jethmalani, are:
(1) The respondents failed to supply despite
the request of the detenu, all the documents which were relied upon by the
detaining authority while passing the order of his detention, that the
detaining authority purported to give him 460 documents, but later on, the
detenu discovered that their number was less and many of them were either
incomplete or had been wholly withheld; that in particular 236 documents
covering 236 pages were not supplied.
This is alleged in ground No. 13 of the
present petition. In reply to this, in para 17 of the counter- affidavit filed
on behalf of the respondents, it is admitted that all the documents had not
been given to the detenu, and he had been supplied enough documents which were
thought to be sufficient to enable him to make an effective representation.
The petitioner came to know about the
non-supply of these documents from the copy of the judgment, dated May 13,
1980, of the Gujarat High Court passed in the allied writ petitions filed on
behalf of other detenus who were alleged to be the associates of the present
(2) On July 17, 1980, a representation was
made on behalf of the detenu with a request that the same be forwarded to the
Central Government for exercise of its power of revocation of the detention
under Section 11 of the Act. The Jailor forwarded that representation to the
Central Government on July 18, 1980, but the same has not yet been disposed of.
This plea is the subject of grounds 16, 17 and 26 of the Writ Petition.
360 A reply to these allegations is to be
found in paragraphs 20 and 21 of the counter filed on behalf of the
respondents, wherein it is admitted that the jailor has sent the representation
at the detenu's request to the Central Govt.
(3) The grounds served on the detenu were in
The detenu does not know English. It is
stated in the affidavit of the person who served the 'grounds' that they were
explained to the detenu in Gujarati which is the mother-tongue of the detenu.
Admittedly, no translation into Gujarati of the grounds of detention was given
to the detenu on March 11, 1980. This being the case there was a breach of the
constitutional imperative which requires that the grounds should be
communicated to the detenu. It can be spelled out therefrom that the grounds
must be communicated in a language which the detenu understands. In support of
this contention, reference has been made to Haribandhu Das v. District
Magistrate, Cuttack & Anr. and the judgment dated June 23, 1980 in Bakshi's
case. Contention No. (1):
In the previous petition, though it was
alleged that there was delay in supply of copies of the documents relied on by
the detaining authority in passing the impugned order of detention, no specific
ground was taken that documents covering about 236 pages which were relied upon
by the detaining authority in passing the order of detention, were suppressed
and not supplied to the petitioner. Indeed this is not denied in the
counter-affidavit. The petitioner has affirmed in his affidavit that he came to
know about the non-supply of these documents from the judgment of the Gujarat
High Court subsequently to the dismissal of his earlier petition. This
affirmation remains unchallenged.
A catena of decisions of this Court has
firmly established the rule that one of the constitutional imperatives embodied
in Article 22(5) of the Constitution is that all the documents and materials
relied upon by the detaining authority in passing the order of detention must
be supplied to the detenu, as soon as practicable, to enable him to make an
effective representation. Recently, in Smt. Icchu Devi Choraria v. Union of
India & Ors., this Court reiterated the principle as follows:
"One of the basic requirements of clause
(5) of Article 22 is that the authority making the order of detention must, as
soon as may be, communicate to the detenu the grounds 361 on which the order of
detention has been made and under sub-section (3) of Section 3 of the COFEPOSA
Act, the words "as soon as may be" have been translated to mean
"ordinarily not later than five days and in exceptional circumstances and
for reasons to be recorded in writing not later than fifteen days, from the
date of detention." The grounds of detention must therefore be furnished
to the detenu ordinarily within five days from the date of detention, but in
exceptional circumstances and for reasons to be recorded in writing, the time
for furnishing the grounds of detention may stand extended but in any event it
cannot be later than fifteen days from the date of detention.
These are the two outside time limits
provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the
grounds of detention are furnished to the detenu, it would not be possible for
him to make a requirement against the order of detention and it is a basic
requirement of clause, (5) of Article 22 that the detenu must be afforded the
earliest opportunity of making a representation against his detention. If the
grounds of detention are not furnished to the detenu within five or fifteen
days, as the case may be, the continued detention of the detenu would be
rendered illegal both on the ground of violation of clause (5) of Article 22 as
also on the ground of breach of requirement of Section 3 sub-section (3) of the
COFEPOSA Act. Now it is obvious that when clause (5) of Article 22 and
sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of
detention should be communicated to the detenu within five or fifteen days, as
the case may be, what is meant is that the grounds of detention in their
entirety must be furnished to the detenu, if there are any documents,
statements or other materials relied upon in the grounds of detention, they
must also be communicated to the detenu, because being incorporated in the
grounds of detention, they form part of the grounds and the grounds furnished
to the detenu cannot be said to be complete with them. It would not therefore
be sufficient to communicate the detenu a bare recital of the grounds of
detention, but of the documents, statements and other materials relied upon in
the grounds of detention must also be furnished to the detenu within the
prescribed time subject of course to clause (6) of Article 22 in order 362 to
constitute compliance with clause (5) of Article 22 and Section 3, sub-section
(3) of the COFEPOSA Act." In the instant case, the materials and documents
which were not supplied to the detenu were evidently a part of those materials
which had influenced the mind of the detaining authority in passing the order
of detention. In other words, they were a part of the basic facts and
materials, and therefore, according to the ratio of Smt.
Icchu Devi's case (ibid), should have been
supplied to the detenu ordinarily within five days of the order of detention,
and, for exceptional reasons to be recorded, within fifteen days of the
commencement of detention. In the counter-affidavit, it has not been asserted
that these documents, which were not supplied, were not relevant to the case of
Contention (2) :
The respondents have, in their
counter-affidavit, stated that this representation was not addressed to the
Central Government. It is, however, admitted that the Jailor had, on the
request of the detenu, forwarded the same to the Central Government on July 18,
1980. No counter-affidavit has been filed on behalf of the Central Government,
showing that this representation was considered and disposed of by it. In matters
touching the personal liberty of a person preventively detained, the
constitutional imperative embodied in Article 22(5) is that any representation
made by him should be dealt with utmost expedition. This constitutional mandate
has been honoured in breach regarding the representation sent by the detenu to
the Central Government.
Contention (3) :
It is an admitted position that the detenu
does not know English. The grounds of detention, which were served on the
detenu, have been drawn up in English. It is true that Shri C. L. Antali,
Police Inspector, who served the grounds of detention on the detenu, has filed
an affidavit stating that he had fully explained the grounds of detention in
Gujarati to the detenu. But, that is not a sufficient compliance with the
mandate of Article 22(5) of the Constitution, which requires that the grounds
of detention must be "communicated" to the detenu.
"Communicate" is a strong word. It means that sufficient knowledge of
the basic facts constituting the 'grounds' should be imparted effectively and
fully to the detenu in writing in a language which he understands. The whole
purpose of communicating the 'ground' to the detenu is to enable him to make a
purposeful and effective representation. If the 'grounds' are only verbally 363
explained to the detenu and nothing in writing is left with him, in a language
which he understands, then that purpose is not served, and the constitutional
mandate in Article 22(5) is infringed. If any authority is needed on this
point, which is so obvious from Article 22(5), reference may be made to the
decisions of this Court in Harikishan v.
State of Maharashtra: and Haribandhu Dass. v.
District Magistrate (ibid).
Thus all the three contentions canvassed by
the counsel for the petitioner, on merits were sound. The conclusion was
therefore, inescapable that due to the aforesaid contraventions of
constitutional imperatives, the continued detention of the detenu was illegal.
It was for these reasons that we had allowed
Writ Petition (Crl.) No. 4349 of 1980 by our order dated October 3, 1980, and
directed the release of the detenu.
P.B.R. Petition allowed.