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Judgment
Judgment pronounced by N.K. Jain, J.—The father of the detenu Chinna @ Rajnikanth, has challenged the impugned order of detention
passed on 8.8.1997 by the first respondent, whereby the detenu has been labelled as ""Goonda"" under Act. 14 of 1982, with a view to preventing
the detenu from indulging in activities which are prejudicial to the maintenance of Public Order and health.
Learned Counsel for the petitioner submits that the detenu himself has filed H.C.P. No.852 of 1997 challenging the order of detention dt.
8.8.1997 which is impugned in this petition, also on three grounds, viz., that he was kept in illegal custody, that two F.I.R. have been made
simultaneously against him and that he was on bail, while passing the order of detention, whereas the detaining authority has mentioned that he was
in custody, while passing the order of detention.
This Court by order dated 26.11.1997, repelling the arguments of the learned counsel for the detenu dismissed the petition, holding that in the
absence of the copy of the telegram and without any proof for having sent any telegram, it cannot be said that the detenu was kept under illegal
detention from... 20.7.97 to 27.7.97. It has been further held that though consecutive numbers were found, the same will not vitiate the order of
detention, and that those two F.I.Rs. have been registered by different police stations on two different dates for the commission of two different
crimes. It has been further held that the detenu was remanded by concerned Court in Crime No. 734 of 1997 registered under Sections 365, 397
I.P.C. and he was not released on bail in the said case by the Magistrate with the result he was in custody even on the date of detention.
Now the learned counsel for the petitioner has challenged the impugned order of detention on various grounds and argues the main ground that
as per the materials supplied to the detenu, it cannot be seen that the detenu was on remand 8.8.1997, on the dale of passing the order of
detention, whereas in the grounds of detention order, it has been stated in para 4 that ""Chinna @ Rajinikanth is in remand and there is imminent
possibility that he may come out on bail,"" which shows clear non- application of mind of the detaining authority, and as such, the order of detention
is liable to be quashed. He further submits that the doctrine of constructive res judicata will not come into play, on the facts and circumstances of
the case and relies on the decision in Jethmal v. Union of India and others, 1986 Cri.L.J. 1645, Gurmej Singh Vs. State of Punjab, , Azam Ali Vs.
The Government of Andhra Pradesh and Another, , Vikram Pratab Singh v. State of Uttar Pradesh and others, 1986 Cri.L.J. 954 and P.
Subramani Vs. State of Karnataka and Others, to support his contentions.
Learned counsel for the petitioner further argues to the fact that it is the abundant duty of the first respondent to comply with Section 3(3) of the
Act by forwarding the other material along with the grounds to the Government and to consider independently for approving, being complied with
other requirements of law. So the subsequent order is also liable to be quashed.
An additional supporting affidavit has been filed by the petitioner. Counter affidavit as well as an additional counter affidavit had been filed by the
first respondent.
Learned Additional Public Prosecutor has contended that the petitioner was in possession of the entire document at the earliest point of time and
he cannot be allowed to agitate fresh grounds now. He says that if it is allowed, there will be no end to the proceedings and as such, the petition is
not maintainable. Learned Additional Public Prosecutor has further submitted that though the doctrine of constructive res judicata will not apply in a
writ of habeas corpus and a writ can be filed on the fresh cause of action, but, now in the instant case, the case law cited by the petitioner will not
be of helpful as the petitioner was in possession of the entire documents at the earliest point of time and as such, this petition deserves to be
dismissed. He relies on the decision in Abhay Shridhar Ambulkar v. S.V. Bhave, Commissioner of Police, 1991 S.C.C. 222.
We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor and perused the materials on record and the
case law placed before us.
It is not necessary for us to deal with the case law as the legal position is not in dispute. It is well settled that the constitutional requirement of
Article 22(5) of the Constitution of India is the right to furnish the grounds of detention and afford an earliest opportunity for making representation
against the order of detention. It is true that the Courts will not preclude to consider the vague ground if any, even if the matter is pending
consideration before the Advisory Board. It is also true that this Court will not go into the merits of the case. The Court is only concerned with the
question as to whether any ground connected to the petitioner was vague, which could preclude him from making any effective representation.
It is also true that the ground already considered cannot be agitated in the second habeas corpus petition. But, the present ground, on which
the entire case is built upon, was not raised in the earlier petition, and though it was available, it was not argued and not considered which facts are
not in dispute. So, before considering it, it is necessary to deal with the arguments regarding the maintainability of this petition, on the doctrine of
constructive res judicata, on the facts of the case on hand.
A Division Bench of Bombay High Court in Kochu Krishnan v. State of Maharastra, 1987 Cri.L.J. 1441 held that the petitioner can maintain
the second petition under Article 226 of the Constitution of India challenging the validity of declaration issued u/s 9(1) of COFEPOSA Act, being
a fresh ground. In the decision of 1988 S.C.C. 808, cited supra, the Court earlier rejected H.C.P. on 28.7.81, after full hearing. Later, it was
challenged stating that in the earlier petition, the question of legality of imprisonment under Cofeposa Act in 9th Schedule of the Constitution was
pending decision in other petition. Their Lordships observed that the petitioner, having deliberately advised not to choose to raise the question in
the earlier petition, observed that, ""we do not think that will be justified in admitting the writ petition. However, we leave it open to the petitioner to
file an application for review or file an independent writ petition, after this Court''s order in other case"".
Considering the decision of the Supreme Court in Jethmal v. Union of India, 1986 Cri.L.J. 1645, it is clear that the doctrine of constructive res
judicata does not bar a subsequent petition for a writ of habeas corpus on fresh grounds which Were not taken in the earlier petition for the same
relief referring to the decision of the Supreme Court in Lallubhai Jogibhal Patel v. Union of India, 1981 S.C. 728. Their Lordships while
considering the matter pertaining to Cofeposa Act, in the above referred case, allowed to agitate a new ground challenging Section 9(1) of the Act
holding that the doctrine of res judicata will not come in the way and one can challenge on a fresh ground also, though, nowhere it has been
considered as to what will be the effect, if the points which were already available, were not raised. Considering this aspect, in our considered
opinion, it is clear that one cannot agitate the point which was available to the detenu earlier, otherwise, there will be no end of the matter. But, at
the same time, looking to the observation of their Lordships, ""that the application of the doctrine of constructive res judicata is confined to civil
actions and civil proceedings and 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 of fresh grounds, which were not taken in the earlier petition for the same relief."" in our
humble opinion, the petitioner can agitate a fresh ground in the second petition, though available to him on the earlier occasion, not taken, but goes
to the root of the matter as the liberty of a citizen has been curtailed under the provisions of preventive law.
It is also pertinent to note that as per the averments made in the additional supporting affidavit filed by the petitioner, on the same ground,
which is being raised in this petition, the co-accused Ganesh has filed H.C.P.NO. 1158 of 1997 stating that there was no material to show that he
was in remand, on the date of passing of the order of detention and the same was allowed by this Court on 12.3.98. In such circumstances, the
argument of the learned counsel for the petitioner is that the detenu Chinna @ Rajinikanth should not be deprived the relief for the reason that the
detenu has not raised this ground, which was available to him, in the earlier petition, cannot be rejected outright, to serve ends of justice.
Considering the legal submission, in the instant case, admittedly the point raised goes to the root of the case. So, this petition cannot be thrown
on the ground of maintainability. For the reasons as discussed above, we hold that the petitioner can be permitted to raise this new ground a fresh
in this petition and this petition is maintainable.
Considering the fact of the case on hand, admittedly in the instant case, it has been stated that in paragraph 4 of the grounds of detention that
the detenu was in remand and there is imminent possibility that he may come out on bail. From the materials supplied to the detenu, it can be seen
that the petitioner was in remand till 7.8.97. The impugned order of detention was passed on 8.8.97. We are at a loss to understand, without any
material on record, nor it was supplied, as to how the detaining authority came to the conclusion that the detenu was in remand on the date of
passing the order of detention. In our opinion, it shows the clear non-application mind of the detaining authority, and the order of detention is not
sustainable. The order of detention, impugned herein, is liable to be quashed on this ground alone.
In view of the above discussion, H.C.P. No. 377 of 1998 is allowed, the order of detention dated 8.8.97 passed by the first respondent is
quashed and the detenu, Chinna @ Rajinikanth is directed to be set at liberty forthwith, unless the detention is required in any other case.