Srikant
Vs. District Magistrate, Bijapur & Ors [2006] Insc 834 (22 November 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(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.
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 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)." 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.
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