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Judgment
Elipe Dharma Rao, J.—The petitioner is the detenu. He filed this petition, challenging the detention order passed against him, branding him
as an ''Immoral Traffic Offender'' under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,
Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).
Earlier, the very same detention order of the petitioner/detenu was challenged by his wife Smt. Jyothi, by filing Habeas Corpus Petition No. 919
of 2008 and this Court, by an elaborate and considered order dated 15.10.2008, has dismissed the same. It has been submitted before us that no
appeal has been filed as against the said order of this Court and thus it has reached its finality. In this backdrop, the petitioner/detenu himself has
come forward to file this petition, challenging the order of detention passed against him.
A very strong objection has been raised on the part of the learned Additional Public Prosecutor appearing for the State, regarding the very
maintainability of this petition. It has also been pointed out that the grounds taken in this petition are identical to the ones taken in the earlier Habeas
Corpus Petition and they were very well available to the petitioner to be raised when the earlier Habeas Corpus Petition was filed.
On the contrary, on the part of the petitioner, the learned Counsel for the petitioner would argue that the principle of res judicata or constructive
res judicata has no role to play in criminal matters and further, the petitioner is filing this petition on fresh grounds to be decided by this Court and
therefore, this petition is very well maintainable.
The question relating to res judicata in habeas corpus petition was considered by the Honourable Apex Court in several cases. In T.P. Moideen
Koya Vs. Government of Kerala and Others, , a Three Judge Bench of the Honourable Apex was dealing with a matter wherein after the habeas
corpus petition under Article 226, seeking quashing of the detention order passed against the petitioner and for setting him at liberty had been
dismissed by the High Court, the matter was carried in appeal to the Supreme Court by filing a petition under Article 136. After leave was granted,
the appeal was dismissed by a detailed judgment, wherein all the contentions raised laying challenge to the detention order and also to the
continued detention of the petitioner had been considered. In the said case, considering all the facts and circumstances and after referring to the
Constitution Bench judgment of the Apex Court in Ghulam Sarwar Vs. Union of India (UOI) and Others, , the Honourable Apex Court has held
as follows:
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 had been filed under Article 226 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 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 SLP under Article 136 and is
allowed to become final, it would still be open to him to file an independent petition under Article 32 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 the 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 the Supreme 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 the Supreme Court by way of a petition under Article 136.
While hearing a SLP against the judgment of the High Court dismissing a habeas corpus petition wherein a prayer has been made to set a detenu at
liberty, the Court would normally examine the same grounds, namely, whether the detention order is in conformity with Article 22(5) of the
Constitution and the provisions of the enactment under which the detention order has been passed, that the procedural safeguards have been
observed and also whether the continued detention of the detenu has not been rendered invalid on account of any breach of the duty cast upon the
authorities. A decision rendered by the Supreme Court in proceedings under Article 136 which has attained finality, would bind the parties and the
same issue cannot be reagitated or reopened in a subsequent petition under Article 32.
It is however clarified that the subsequent petition under Article 32 seeking a writ of habeas corpus for setting at liberty a person who has been
detained under any of the detention laws would be maintainable if the circumstances have changed. It would also be maintainable on the grounds
which were not available when the earlier petition was decided.
(emphasis supplied)
The position discussed and decided by the Honourable Apex Court in the above judgment is similar to the one on hand. In the case on hand
also, this Court has dismissed the earlier Habeas Corpus Petition filed on behalf of the detenu by a detailed order and the same has reached its
finality, since not assailed. Thereafter, the detenu himself has come forward to file this petition, contending that the principle of res judicata has no
application to his case.
The learned Additional Public Prosecutor has relied on the judgment of the Honourable Apex Court in Srikant v. District Magistrate, Bijapur
and Ors. (2007) 1 SCC (Cri) 385, wherein, after discussing various case laws on the subject, including the above Three Judge Bench Judgment, it
has been held:
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.
On an analogous reading of the entire case law on the subject, the following legal proposition could be culled out:
The principle 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. But, when once the habeas corpus petition filed either by the detenu or on his behalf by somebody, was dismissed by the High Court on
merits and the same has not been assailed in appeal and thus it has reached its finality, for filing the second habeas corpus petition, the petitioner
must show that there exist new or fresh grounds to be considered by the High Court, which were not available to him while filing or deciding the
earlier habeas corpus petition and that continuance of his detention is no more required in view of the changed circumstances. The fact, as to
whether the grounds raised in the second habeas corpus petition are new or fresh ones, 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, it must be kept in mind that it is the substance and not the form which is relevant
and 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. In the absence of any fresh or new grounds and if the petitioner fails to prove that continuance of his detention is no more required in
view of the changed circumstances, it is not open to the High Court, sitting under Article 226 of the Constitution of India, to exercise a power of
review or some kind of an appellate jurisdiction over the decision already rendered by it earlier regarding the very same detention order.
In the light of the above legal position, now we have to see whether this petition has been filed on new or fresh grounds and whether the
petitioner has brought forth any changed circumstances, so as to say that continuance of his detention is no more required, in view of such changed
circumstances. Of course, it must be kept in mind, while deciding the petition as to whether the grounds now raised are fresh or new ones and no
surgical changes are made with the context and that the substance and essence not remained the same.
In the grounds, the petitioner has submitted that his wife has sent representation to the 1st respondent on 10.6.2008 and the 1st respondent
received the representation on 13.6.2008 within 12 days from the date of detention order and before the approval of the Government, but the
Detaining Authority has not considered the representation sent by his wife.
In the earlier petition filed by the wife of the detenu in H.C.P. No. 919 of 2008, the petitioner''s wife has raised Ground No. 6, wherein she
has stated that she sent the representation on 10.6.2008 to the 1st respondent by RPAD and it has been mentioned therein that the detenu knows
only Telugu and no confession statement was given by her husband and the same was not taken into consideration by the detaining authority. Thus,
this being the ground raised with some surgical changes made with the context and substance and essence remaining the same, it cannot be said
that challenge is on new or fresh ground, as has been held by the Honourable Apex Court in Srikant''s case (cited supra).
On the part of the petitioner, it has been urged that in the Tamil Grounds of detention, it has been stated that he was produced before the VII
Metropolitan Magistrate Court, but, in the remand order, it has been mentioned that he was produced before the VI Metropolitan Magistrate
Court and therefore, it proves that the detaining authority, without going through the documents available to him has passed the detention order.
The above said contradiction cannot be construed as a contradiction at all, since appears to be only a typographical error, without having the
capacity to tilt the balance in favour of the petitioner/detenu.
The other grounds raised by the petitioner are that the copy of the complaint lodged by the Sub Inspector of Police was not furnished to him;
that there is a translation variation between the grounds of detention and the Tamil detention at page No. 5; that in the ground case it is stated that
two girls were rescued from the detenu, namely Padma and Jothi, which is an utter false and that the said Padma is the wife of A.2 in the ground
case and a perusal of the confession statement of A.2 and the statement of Padma will reveal the truth and the said Padma filed an affidavit before
this Court that she is not rescued by the Sponsoring Authority, but the said facts were suppressed by the sponsoring authority; that the bail petition
of Bhaskar from English to Tamil version was not translated properly and that there is a translation mistake in the remand order at page No. 269
and that there is a variation of the time of arrest, confession statement and arrest report.
All these grounds are very well available to the petitioner when his wife has filed the earlier Habeas Corpus Petition. Further more, in the earlier
round of litigation, it has been stiffly contended on the part of the detenu that he has been furnished with the documents only in Tamil, with which he
has no acquaintance and this Court, on perusal of the entire materials on record and considering the fact that he is a resident of Chennai for the last
23 long years and that he is facing a criminal case in Cr. No. 235 of 203 before the Court of learned IV Metropolitan Magistrate, Saidapet,
Chennai, wherein all the material documents are said to have been filed only in Tamil and there is no request on behalf of the detenu before the said
Magistrate or before any other authority requesting to furnish him the documents in that case in Telugu, has rejected the said plea. In the present
petition, a plea has been taken that there are mistakes in the translation from English to Tamil, which substantiates our finding, rendered in the
earlier petition, that the detenu is very well acquainted with Tamil.
No reason, whatsoever, has been offered on the part of the detenu, as to why the grounds, which have been brought before us now in this
petition, were not raised earlier, though they were very well available to him. On a careful perusal of the entire materials placed on record and also
the so-called new grounds raised by the petitioner, we do not consider them as the new ones since they are only the grounds with some surgical
changes, with the context, substance and essence remaining the same with that of the grounds raised earlier. No changed circumstances,
whatsoever, to held that the detention of the petitioner is no more required, have also been brought to our notice. In the absence of any new or
fresh grounds and in view of the failure of the petitioner in establishing any changed circumstances that his continued detention is no more required,
this Court, while sitting under Article 226 of the Constitution of India, cannot exercise the power of review or any kind of an appellate jurisdiction
over the decision already rendered by it regarding the very same detention order of the petitioner.
Therefore, for all the above reasons and discussions, this Habeas Corpus Petition is dismissed as not maintainable, since no new or fresh grounds,
which were not available at the time of filing the earlier habeas corpus petition in H.C.P. No. 919 of 2008, have been raised and it has also not
been proved by the petitioner that continuance of his detention is no more required in view of any changed circumstances.