Noor Mahammad, SK. vs District Magistrate

Ajay K. Basu, J.—This is an application of habeas corpus by the detenu Janab Md. Obedur Rahman who was detained under the MISA. This application has a chequered career. As stated in para. 12 of the petition, after the detention of the Petitioner an application was made to this Court and a Rule nisi in Criminal Misc. Case No. 1032 of 1972 was obtained. But on July 25, 1972, the learned lawyer for the Petitioner prayed for leave to withdraw the said application with liberty to move afresh. Thereafter, another application for habeas corpus was moved by the detenu and a Rule was issued being Criminal Misc. Case No. 1713 of 1972, but the said Rule was discharged by S.K. Bhattacharyya J. and Sudhamay Basu J., our learned brothers, on December 22, 1972, when their Lordships considered the case on merit and discharged the Rule. Thereafter the present Rule was obtained by the detenu for his self-same detention before Borooah and Chanda JJ. On February 27, 1973, and the said Bench was pleased to release the detenu on bail on March 1, 1973.

On the ground of maintainability of this application Mr. Kundu for the Petitioner drew our attention to a judgment passed by our learned brothers Anil K. Sen and N.C. Mukherji JJ. in Durjadhan Patra v. The District Magistrate, Howrah and Anr. Unreported Criminal Misc. Case No. 1036 of 1972 decided on August 24, 1972 on the ground of illegality.

Mr. Paul appearing for the State submits that as decided by the Supreme Court in Ghulam Sarwar Vs. Union of India (UOI) and Others, though strictly the principle of res judicata may not apply in this habeas corpus matters but nonetheless a Division Bench should not set aside the order passed by another Division Bench of the same High Court except in the case of lawless order or in the case when fresh facts are discovered later on.

In this particular case no new or fresh facts have been discovered at all and the point taken before us about the alleged non-application of mind by the detaining authority was all along there in the ground served on the Petitioner though the Petitioner did not take up that point before. The point was that after narrating the grounds of detention, in the order, the detaining authority has directed that the representation should be made at least three months before the expiry of ''two years'' which is obviously wrong. In the present case, we are satisfied that the Petitioner himself did not suffer any prejudice because immediately after the detention be made representation on July 29, 1972, and it was placed before the Advisory Board on August 7, 1972, and the decision of the Advisory Board was obtained on August 17, 1972, and everything was within time, and we should say, within a very short time. Therefore, we must say that the detenu was not at all prejudiced. Then coming to the case of Durjadhan Patra Supra it appears to us that the facts of the case was entirely different. In that case, the ground itself was illegal, but the Bench had discharged the Rule as that was not pointed out and that very Bench after finding the mistake corrected it on the principle of reviewing its own order. But, that is not the fact in the present case. Here the ground is legal and cannot be assailed, but about the time of representation a mistake or error has crept in that, in our opinion, cannot be the ground for striking out the order, and in the facts and circumstances of the present case such error has not in any way misled the detenu nor did he suffer and, in fact, the detenu has not suffered or prejudiced at all. Material error or mistake which might in any way prejudice or tend to prejudice the detenu should be struck down. But, no one should be allowed to take advantage of any minor slip or innocuous or obvious and bona fide mistakes. After all ''to err is human'' and human being in general are neither infallible nor absolutely perfect. Mr. Kundu refers to a decision of Borooah and Chanda JJ. in Criminal Misc. Case No. 1708 of 1972 which is entirely different from the facts and circumstances of the present case.

In that view of the matter we do not think we should differ from the judgment passed by S.K. Bhattacharyya and Sudhamay Basu JJ. In our view, there is no substance in this application. The Rule is, accordingly, discharged. The detenu should surrender to his bail bond. But we direct the detaining authorities to be careful in future so that such careless mistakes do not appear in future.

N.C. Mukherji, J.

I agree.