SUPREME COURT OF INDIA
Srikant
Vs
District Magistrate, Bijapur and Others
Appeal (Crl.) 1201 of 2006 (Arising Out of Slp (Crl.) No.666 of 2006)
(Arijit Pasayat and L. S. Panta, JJ)
22.11.2006
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. 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. . 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 Indlaw QBD 47,
in Re Hastings (3), 1959 Indlaw CHD 9 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 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 . 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 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. 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 Indlaw QBD 47
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 Indlaw CHD 9. 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.