Kirit Kumar Chaman Lal Kundaliya Vs.
State of Gujarat & Ors [1981] INSC 22 (30 January 1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION: 1981 AIR 1621 1981 SCR (2) 718 1981
SCC (2) 437 1981 SCALE (1)223
CITATOR INFO :
D 1990 SC 176 (25) D 1990 SC 334 (25,26) RF
1990 SC 605 (17) RF 1991 SC2261 (7)
ACT:
Constitution of India-Art. 32-Habeas Corpus
petition- Urging additional grounds in different petitions-If barred by
constructive res judicata.
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act-Section 3-Petitioner's representation
rejected by Secretary to the Department but not by the detaining
authority-Validity of.
Words and Phrases : "relied on",
"referred to", "based on" meaning of.
HEADNOTE:
The petitioner filed a Special Leave Petition
impugning the order of the Foreign Exchange and Prevention of Smuggling
Activities Act impugned the order of his detention on the grounds that the
materials relied upon in the order of detention were not supplied to him and
that two of the documents referred to in the order of detention were not
supplied to him because the Secretary of the Department thought that they were
not relevant.
After examining the file and relevant
documents the High Court held that failure to supply them did not vitiate the
order of detention.
The petitioner filed a Special Leave Petition
impugning the order of the High Court and also a petition under article 32
urging certain additional grounds that the endorsement by the Secretary showed
that it was he who decided the relevancy of the documents to be supplied and
not the Minister who was the detaining authority and his representation was
rejected by the Secretary acting on behalf of the Minister instead of the
Minister himself.
A preliminary objection was raised on behalf
of the State that the points not raised in the High Court by the detenu could
not be agitated in a writ petition under Article 32 because that is barred by
the principle of constructive res judicata.
Allowing the petition,
HELD : The well established position in law
is that so far as petitions for habeas corpus are concerned the doctrine of
constructive res judicata could not apply.
Secondly even successive petitions for habeas
corpus under article 32 would be maintainable in this Court provided the points
raised in the subsequent petitions are additional points not covered or
agitated in the previous petitions.
Thus if the principles of res judicata could
not apply to successive writ petitions in this Court, much less could they be
attracted to cases where points were not agitated before the High Court but
were raised for the first time in this Court in a writ petition under Article
32. [723B&E] Shri Lallubhai Jogibhai Patel v. Union of India & Ors. [1981]
2 S.C.R. 352, followed.
Ghulam Sarwar v. Union of India & Ors.
[1967] 2 S.C.R.
271, held inapplicable.
719 The doctrine of finality of judgment or
principles of res judicata are founded on the basic principle that where a
Court of competent jurisdiction has decided an issue, the same ought not to be
allowed to be agitated again and again.
Such a doctrine would be wholly inapplicable
to cases where the two forums have separate and independent jurisdictions.
[723F] The jurisdiction under Article 226 is
a discretionary jurisdiction whereas the jurisdiction to grant relief in a
petition under Article 32 is guaranteed by the Constitution.
Once the Court finds that there has been a
violation of Article 22(5) of the Constitution it has no discretion in the matter
but is bound to grant the relief to the detenu.
The doctrine of res judicata or the
principles of finality of judgment cannot be allowed to whittle down or
override the express constitutional mandate to the Supreme Court enshrined in
Article 32 of the Constitution. [723G-H] The concept of liberty has now been
widened by Maneka Gandhi's case [1978] 2 S.C.R. 621 where Article 21 as
construed by this Court has added new dimensions to the various features and
concepts of liberty as enshrined in Articles 21 and 22 of the Constitution.
[724B] Smt. Santosh Anand v. Union of India & Ors., W.P. No. 1097/79
(decided on 31-10-1979) referred to.
It was not open to the High Court to have
waded through the confidential file of the Government in order to fish out a point
against the detenu. Secondly, the question of relevance was not to be decided
by the Court but by the detaining authority which alone had to consider the
representation of the detenu on merits and then come to the conclusion whether
it should be accepted or rejected. As the reasoning of the High Court was
legally erroneous the order of the High Court cannot be allowed to stand.
[724D-E] Before the grounds were served on the petitioner, the documents were
placed before the detaining authority and were, therefore, referred to in the
grounds of detention.
Manifestly the subjective satisfaction could
only be ascertained from or reflected in the grounds of the order of detention
passed against the detetnu; otherwise without giving the grounds the mere subjective
satisfaction of the detaining authority would make the order of detention
incomplete and ineffective. Once the documents are referred to in the grounds
of detention it becomes the bounden duty of the detaining authority to supply
the same to the detenu as part of the grounds or pari passu the grounds of
detention. There is no particular charm in the expressions 'relied on',
'referred to' or 'based on' because ultimately all these expressions signify
one thing, namely, that the subjective satisfaction of the detaining authority
has been arrived at on the documents mentioned in the grounds of detention. The
question whether the grounds have been "referred to", "relied
on" or "based on" is merely a matter of describing the nature of
the grounds. [725A-C] 720 Ram Chandra A. Kamat v. Union of India & Ors.
[1980] 2 S.C.C. 271 applied.
Shri Tushar Thakkar v. Union of India &
Ors. [1980] 4 S.C.C. 499 referred to.
Whether the documents concerned are
"referred to", "relied upon" or "taken into
consideration", by the detaining authority they have to be supplied to the
detenu to make an effective representation immediately on receiving the grounds
of detention. [725G-H] In the present case this not having been done the
continued detention of the petitioner must be held to be void.
There was no decision by the detaining
authority that the documents were irrelevant. The documents concerned were
examined not by the detaining authority but by the Secretary. There is nothing
to show that the opinion or endorsement of the Secretary was placed and
approved by the detaining authority. [724G] The petitioner's representation had
been rejected by an authority which had no jurisdiction at all to consider or
pass any orders on the representation of the detenu. This renders the continued
detention of the petitioner void.
[726D]
ORIGINAL JURISDICTION : Writ Petition No.
6354 of 1980.
(Under Article 32 of the Constitution) AND
Criminal Appeal No. 53 of 1981.
Appeal by Special Leave from the Judgment and
Order dated 25-11-1980 of the Gujarat High Court in Crl.
Application No. 218 of 1980.
Anil Divan, Harjinder Singh and M. M. Lodha
for the Petitioner in Writ Petition and in the Criminal Appeal.
M. N. Phadke and M. N. Shroff for Respondents
1-3.
The Judgment of the Court was delivered by
FAZAL ALI, J.-By our Order dated 21-1-1981 we had already allowed the petition
and directed the detenu to be released forthwith. We now proceed to set out the
reasons for the Order which we passed on 21-1-1981.
The writ petition and the criminal special
leave arise out of the same subject matter, namely, that the petitioner (Kirit
Kumar Chaman Lal Kundaliya) was detained by an order passed by the Home
Minister of the State of Gujarat on 9-9- 1980 under s. 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act.
The Petitioner/detenu in the first instance
filed a petition for habeas corpus in the High Court of Gujarat which was
dismissed by the High Court by its order dated 25- 11-1980. The detenu
thereafter filed a petition for special leave against the order of the High
Court 721 and also a writ petition under Art. 32 of the Constitution of India
in this Court. Both the petition for special leave and the writ petition have
been heard together.
Before the High Court, the detenu assailed
the order of detention mainly on the ground that certain materials relied upon
or referred to in the order of detention were not supplied to the detenu and
hence he was not in a position to make an effective representation to the Government.
It was also pleaded by the detenu before the High Court that two of the
documents which were referred to in the order of detention were not supplied to
him because the Secretary thought that they were not relevant.
The High Court while examining the contention
of the detenu sent for the entire file from the Government and after examining
the documents itself found that as the documents concerned were not relevant
and consisted of statements of some other persons, the failure to supply the
documents to the detenu did not vitiate the order of detention. Hence the
petition in this Court for grant of special leave against the order of the High
Court.
A separate writ petition has also been filed
by the detenu in this Court in which apart from the point canvassed before the
High Court certain additional grounds have been taken. In the view that we take
in the present case. it is sufficient to refer only to two important grounds
that have been taken in the writ petition. In the first place, it was suggested
that the endorsement by the Secretary shows that the question as to whether or
not the documents demanded by the detenu were relevant was decided not by the
Minister who was the detaining authority but by the Secretary. Secondly, it was
urged that although the case relied upon by the respondents also does not
decide that the detenu made a representation to the State Government on
3-10-1980 the same was rejected on 14-10-1980 not by the detaining authority,
namely, the Hon. Home Minister acting on behalf of the Government but by the
Secretary, and this infirmity was sufficient to render the order of detention
void.
Mr. Phadke appearing for the State took a
preliminary objection regarding the maintainability of the writ petition filed
by the detenu in this Court. The sheet-anchor of the argument of Mr. Phadke for
the State was that as the detenu had not raised the additional points taken in
the High Court he could not be permitted to agitate those very points in the
writ petition filed under Art. 32 of the Constitution as the same were barred
by the principles of constructive res judicata. In sup- 722 port of his
argument he relied on a decision of this Court in the case of Ghulam Sarwar v.
Union of India & Ors.
The learned counsel for the petitioner,
however, countered the submission of the respondents on the ground that a writ
under Art. 32 being guaranteed by the Constitution the doctrine of res judicata
can have no application to a writ petition filed in this Court under Art. 32.
Mr. Dewan, learned counsel for the detenu further submitted that the case
relied upon by the respondents also does not decide that the writ petition was
not maintaining as being barred by principles of res judicata. In our opinion,
the contention raised by the learned counsel for the detenu is well founded and
must prevail. Ghulam Sarwar's case (supra.) which was heavily relied on by the
respondents does not at all support the contention raised before us by them. In
that case this Court traced the history of habeas corpus writs and ultimately
held that atleast so far as petitions for habeas corpus are concerned, the
doctrine of constructive res judicata could not apply. In this connection Subba
Rao, C. J. observed as follows :- "If the doctrine of res judicata is
attracted to an application for a writ of habeas corpus. there is no reason why
the principles of constructive res judicata cannot also govern the said
application, for the rule of constructive res judicata is only a part of the
general principles of the law of res judicata and if that be applied, the scope
of the liberty of an individual will be considerably narrowed.....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 illegally detained,
will become powerless to do so. That would be whittling down the wide sweep of
the constitutional protection." Bachawat, J., in his concurring judgment
also endorsed the view of Subba Rao, C. J., and observed as follows :
"The order of Khanna, J. dismissing the
writ petition filed by the petitioner in the Punjab High Court challenging the
legality of the detention order passed by the Central Government under s. 3(2)
(g) of the Foreigners Act, 1946 and asking for the issue of a writ of habeas
corpus is not a judgment, and does not operate as res judicata. That order does
not operate as a bar to the application under Art. 32 of the Constitution
asking for the issue of a writ of habeas corpus on the same facts. The 723
petitioner has fundamental right to move this Court under Art. 32 for the issue
of a writ of habeas corpus for the protection of his right of liberty. The
present petition must, therefore, be entertained and examined on the
merits." Apart from the aforesaid case, there is a recent decision of a
Constitution Bench of this Court in Shri Lallubhai Jogibhai Patel v. Union of
India & Ors. where this Court has held that even successive petitions for
habeas corpus under Art. 32 would be maintainable in this Court provided the
points raised in the subsequent petitions are additional points not covered or
agitated in the previous petitions. In this connection, Sarkaria, J. speaking
for the Court observed as follows :- "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 Art.
32 of the Constitution on fresh grounds, which were not taken in the earlier
petition for the same relief" Thus, if the principles of res judicata
could not apply to successive writ petitions in this Court much less could they
be attracted in cases where points were not agitated before the High Court but
were raised for the first time in this Court in a writ petition under Art. 32.
Apart from the cases discussed above there is
another ground on which the argument of Mr. Phadke for respondents must be
rejected. The doctrine of finality of judgment or the principles of res
judicata are founded on the basic principle that where a Court of competent
jurisdiction has decided an issue, the same ought not to be allowed to be
agitated again and again. Such a doctrine would be wholly inapplicable to cases
where the two forums have separate and independent jurisdictions. In the
instant case, the High Court decided the petition of the detenu under Art. 226
which was a discretionary jurisdiction whereas the jurisdiction to grant relief
in a petition under Art. 32 filed in the Supreme Court is guaranteed by the
Constitution and once the Court finds that there has been a violation of Art.
22(5) of the Constitution, then it has no discretion in the matter but is bound
to grant the relief to the detenu by setting aside the order of detention. The
doctrine of res judicata or the principles of finality of judgment cannot be
allowed to whittle down or override the express constitu- 724 tional mandate to
the Supreme Court enshrined in Art. 32 of the Constitution. In a recent
decision in the case of Smt.
Santosh Anand v. Union of India & Ors.
this Court has pointed out that the concept of liberty has now been widened by
Maneka Gandhi's case where Art. 21 as construed by this Court has added new
dimensions to the various features and concepts of liberty as enshrined in
Arts. 21 and 22 of the Constitution. For these reasons, therefore, we overrule
the preliminary objection taken by the respondents.
We now come to the merits of the cases. So
far as the writ petition filed in the High Court is concerned the only point
taken was that two documents referred to in the order of detention were not
supplied to the detenu. The High Court rejected this contention on the ground
that the documents were merely referred to and not relied on by the detaining
authority and after having examined the documents it found that the same were
not relevant. With due respect to the Judges we are unable to agree with the
view taken by them.
In the first place, it was not open to the
Court to have waded through the confidential file of the Government in order to
fish out a point against the detenu. Secondly, the question of relevance was not
to be decided by the Court but by the detaining authority which alone had to
consider the representation of the detenu on merits and then come to the
conclusion whether it should be accepted or rejected. As the reasoning of the
High Court, was legally erroneous the order of the High Court cannot be allowed
to stand and is hereby quashed.
The matter does not rest here but two
additional points which have been taken in the writ petition before us are
sufficient to void the order of detention passed against the detenu. In the
first place, it was submitted that the endorsement on the file produced before
us by the Government shows that the documents concerned were examined not by
the detaining authority but by the Secretary and there is nothing to show that
the note or endorsement of the Secretary was placed and approved by the
detaining authority. In these circumstances, therefore, it must be held that
there was no decision by the detaining authority that the documents were
irrelevant. It was, however, submitted by Mr. Phadke that the documents
concerned were merely referred to in the grounds of detention but did not form
the basis of the subjective satisfaction of the detaining authority at the time
when it passed the order of detention. It was, however, conceded by Mr. Phadke
that before the grounds were served on the petitioner, the documents were
placed before the detain- 725 ing authority and were, therefore, referred to in
the grounds of detention. It is manifest, therefore, that the subjective
satisfaction could only be ascertained from or reflected in the grounds of the
order of detention passed against the detenu otherwise without giving the
grounds the mere subjective satisfaction of detaining authority would make the
order of detention incomplete and ineffective. Once the documents are referred
to in the grounds of detention it becomes the bounden duty of the detaining
authority to supply the same to the detenu as part of the grounds or pari passu
the grounds of detention. There is no particular charm in the expressions
`relied on', `referred to' or `based on' because ultimately all these
expressions signify one thing, namely, that the subjective satisfaction of the
detaining authority has been arrived at on the documents mentioned in the
grounds of detention. The question whether the grounds have been referred to,
relied on or based on is merely a matter of describing the nature of the
grounds. Even so in the case of Ram Chandra A. Kamat v. Union of India &
Ors. a three Judge bench decision of this Court to which one of us (Fazal Ali,
J.) was a party, clearly held that even the documents referred to in the
grounds of detention have to be furnished to the detenu. In this connection the
Court observed as follows :- "If there is undue delay in furnishing the
statements and documents referred to in the grounds of detention the right to
make effective representation is denied.
The detention cannot be said to be according
to the procedure prescribed by law." The same view was taken in a later
decision of this Court in Shri Tushar Thakker v. Union of India & Ors.
where this Court observed as follows :- "This Court has repeatedly held
that the detenu has a constitutional right under Article 22 (5) to be furnished
with copies of all the materials relied upon or referred to in the grounds of
detention, with reasonable expedition." Thus, it is absolutely clear to us
that whether the documents concerned are referred to, relied upon or taken into
consideration by the detaining authority they have to be supplied to the detenu
as part of the grounds so as to enable the detenu to make an effective
representation immediately on receiving the grounds of detention. This not
having been done in the present case the continued detention of the petitioner
must be held to be void.
726 Lastly, the order of detention suffers
from yet another serious infirmity which makes the order of detention
absolutely non est. The respondents, in their counter- affidavit have
categorically averred that the order of detention was passed by the Home
Minister, vide the counter affidavit of P.M. Shah at page 86 of the writ
petition, where the following averments have been made by Mr. Shah, Deputy
Secretary to the Government of Gujarat :- "Referring to ground No. XXII
paragraph 7 of the petition, I say that the file relating to the detention of
the petitioner was placed before the Home Minister of the State of Gujarat and
the Home Minister on careful consideration of the same passed the impugned
order of detention." The representation made by the detenu on 3-10-1980
has been rejected on 14-10-1980 not by the Home Minister but by the Secretary,
thus, the representation has been rejected by an authority which had no
jurisdiction at all to consider or pass any orders on the representation of the
detenu. This, therefore, renders the continued detention of the petitioner
void. In an identical case this Court in Smt. Santosh Anand's case (supra.)
observed as follows :- "The representation was, therefore, not rejected by
the detaining authority and as such the constitutional safeguard under Art.
22(5) as interpreted by this Court, cannot be said to have been strictly
observed or complied with." For the reasons given above, therefore, we
allow this petition and direct the detenu to be released forthwith. The special
leave petition is disposed of accordingly.
P.B.R. Petition allowed.
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