2006 JTR(SC) 1159
2007 49 AIC 721 ; 2007 3 AICLR 134 ; 2007 2 AIR(Kar)(R) 149 ; 2006 AIR(SCW) 6355 ; 2007 1 ApexCJ(SC) 734 ; 2007 1 BLJ(SC) 112 ; 2007 1 CriCC 993 ; 2007 2 JCR(SC) 216 ; 2007 1 KarLJ 337 ; 2007 2 KLJ 17 ; 2007 Supp2 KLT 35 ; 2007 1 RCR(Cri) 516 ; 2006 12 Scale 270 ; 2007 1 SCC 486 ; 2007 1 SCC(Cri) 385 ; 2006 Supp9 SCR 312 ; 2007 1 WLC 405 ; 2006 9 Supreme 347
2006(9) Supreme 347
SUPREME COURT OF INDIA
(From Karnataka High Court)
Arijit Pasayat and Lokeshwar Singh Panta, JJ.
Srikant - Appellant
versus
District Magistrate, Bijapur & Ors. - Respondents
Criminal Appeal No. 1201 of 2006
(Arising out of SLP (Crl.) No. 666 of 2006)
Decided on 22-11-2006
Counsel for the Parties :
For the Appellant : K.K. Mani, Advocate.
For the Respondents : Anil K. Mishra, Vikrant Yadav, Sashidhar and Sanjay R. Hegde, Advocates.
IMPORTANT POINT
Principle of res-judicata is inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus on fresh grounds.
(A) The appeal pertains to the legality of detention under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985, where the detained individuals constitutional right to life and personal liberty under Article 21 is at stake. The challenge is grounded on alleged non-compliance with procedural safeguards mandated by Article 22(5) of the Constitution, specifically the failure to afford an opportunity of making representation and to communicate this right to the detenu. The High Courts dismissal of the habeas corpus petition was partly on the basis of the doctrine of res judicata, contending that successive petitions on identical grounds are barred. This Court examines the interplay between res judicata and the unique nature of habeas corpus petitions under Articles 226 and 32, drawing upon principles from statutory provisions and precedential authorities to determine the conditions under which a subsequent writ petition is maintainable.
(B) The principle of res judicata or constructive res judicata does not bar successive habeas corpus petitions in circumstances where the detention involves alleged infringement of fundamental rights, particularly when the earlier petition was decided without according a meaningful opportunity to be heard or on the merits. A petition under Article 32 for habeas corpus is maintainable even if a similar petition under Article 226 was previously dismissed, provided fresh grounds are taken and the subject matter is detention questioning personal liberty. The doctrine of res judicata applies principally to civil actions and does not extend to bar habeas corpus where the objective is to secure release from unlawful detention. The court must assess substance over form to determine whether the grounds are truly new or merely a repackaging of the earlier challenge.
Facts of the case:
The appellants brother was detained under the Karnataka Prevention of Dangerous Activities Act, 1985, on the ground of indulging in immoral activities. The detention order was passed by the District Magistrate, approved by the State Government and the Advisory Board. The appellant challenged the detention through a habeas corpus petition, alleging non-compliance with Article 22(5) procedures, specifically the failure to provide an opportunity to make representation and to inform the detenu of such right. The High Court had previously dismissed an earlier writ petition, and the present petition was resisted on the ground that the issues were already decided or available to be raised. The High Court applied the doctrine of res judicata and dismissed the petition.
Findings of Court:
This Court reiterated that the bar of res judicata or constructive res judicata does not apply to habeas corpus petitions under Article 32 where the petitioner seeks personal liberty. It emphasized that a successful plea in habeas corpus requires that the detention lacks legal justification and that the opportunity to make a representation must be effectively communicated to the detenu. The Court held that the essence of the challenge, not its form, determines whether it constitutes a fresh ground. It also noted that while a decision by a competent court is binding, habeas corpus petitions retain an independent character, and denial of relief in one petition does not preclude another on genuinely new grounds.
Issues:
Whether the doctrine of res judicata or constructive res judicata applies to a successive habeas corpus petition filed under Article 32 of the Constitution challenging detention on the same grounds as an earlier petition dismissed by the High Court.
Whether the alleged non-communication of the right to make representation and the opportunity to be heard goes to the root of the illegality of detention and therefore constitutes fresh grounds warranting issuance of the writ.
Ratio Decidendi:
The core judicial reasoning is that habeas corpus is a sui generis remedy for safeguarding personal liberty and that the principles of res judicata applicable to civil proceedings do not extend to bar successive habeas corpus petitions. The maintainability of a subsequent petition hinges on whether genuinely new grounds, particularly relating to procedural safeguards under Article 22(5), are taken, and not on mere repackaging of the same allegations. The right to make representation and to be informed thereof is integral to the legality of detention, and its non-communication can independently vitiate the order of detention.
Result:
The appeal is allowed, and the petition is deemed maintainable. The earlier dismissal does not preclude the filing of a fresh habeas corpus petition if the detenu is able to demonstrate the denial of a meaningful opportunity to make representation as a distinct ground challenging the legality of detention.
(A) The appeal pertains to the legality of detention under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985, where the detained individuals constitutional right to life and personal liberty under Article 21 is at stake. The challenge is grounded on alleged non-compliance with procedural safeguards mandated by Article 22(5) of the Constitution, specifically the failure to afford an opportunity of making representation and to communicate this right to the detenu. The High Courts dismissal of the habeas corpus petition was partly on the basis of the doctrine of res judicata, contending that successive petitions on identical grounds are barred. This Court examines the interplay between res judicata and the unique nature of habeas corpus petitions under Articles 226 and 32, drawing upon principles from statutory provisions and precedential authorities to determine the conditions under which a subsequent writ petition is maintainable.
(B) The principle of res judicata or constructive res judicata does not bar successive habeas corpus petitions in circumstances where the detention involves alleged infringement of fundamental rights, particularly when the earlier petition was decided without according a meaningful opportunity to be heard or on the merits. A petition under Article 32 for habeas corpus is maintainable even if a similar petition under Article 226 was previously dismissed, provided fresh grounds are taken and the subject matter is detention questioning personal liberty. The doctrine of res judicata applies principally to civil actions and does not extend to bar habeas corpus where the objective is to secure release from unlawful detention. The court must assess substance over form to determine whether the grounds are truly new or merely a repackaging of the earlier challenge.
Facts of the case:
The appellants brother was detained under the Karnataka Prevention of Dangerous Activities Act, 1985, on the ground of indulging in immoral activities. The detention order was passed by the District Magistrate, approved by the State Government and the Advisory Board. The appellant challenged the detention through a habeas corpus petition, alleging non-compliance with Article 22(5) procedures, specifically the failure to provide an opportunity to make representation and to inform the detenu of such right. The High Court had previously dismissed an earlier writ petition, and the present petition was resisted on the ground that the issues were already decided or available to be raised. The High Court applied the doctrine of res judicata and dismissed the petition.
Findings of Court:
This Court reiterated that the bar of res judicata or constructive res judicata does not apply to habeas corpus petitions under Article 32 where the petitioner seeks personal liberty. It emphasized that a successful plea in habeas corpus requires that the detention lacks legal justification and that the opportunity to make a representation must be effectively communicated to the detenu. The Court held that the essence of the challenge, not its form, determines whether it constitutes a fresh ground. It also noted that while a decision by a competent court is binding, habeas corpus petitions retain an independent character, and denial of relief in one petition does not preclude another on genuinely new grounds.
Issues:
Whether the doctrine of res judicata or constructive res judicata applies to a successive habeas corpus petition filed under Article 32 of the Constitution challenging detention on the same grounds as an earlier petition dismissed by the High Court.
Whether the alleged non-communication of the right to make representation and the opportunity to be heard goes to the root of the illegality of detention and therefore constitutes fresh grounds warranting issuance of the writ.
Ratio Decidendi:
The core judicial reasoning is that habeas corpus is a sui generis remedy for safeguarding personal liberty and that the principles of res judicata applicable to civil proceedings do not extend to bar successive habeas corpus petitions. The maintainability of a subsequent petition hinges on whether genuinely new grounds, particularly relating to procedural safeguards under Article 22(5), are taken, and not on mere repackaging of the same allegations. The right to make representation and to be informed thereof is integral to the legality of detention, and its non-communication can independently vitiate the order of detention.
Result:
The appeal is allowed, and the petition is deemed maintainable. The earlier dismissal does not preclude the filing of a fresh habeas corpus petition if the detenu is able to demonstrate the denial of a meaningful opportunity to make representation as a distinct ground challenging the legality of detention.
JUDGMENT
Arijit Pasayat, J. - Leave granted.
2. 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.
3. 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.
4. 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.
5. 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 Sarwars 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)."
6. 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 Kings 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."
7. In the said case reference was also made to the earlier decision in Gulam Sarwars 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."
8. 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.
9. The appeal is accordingly disposed of.
Appeal disposed of.
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