JUDGMENT
Syed Shah Mohammed Quadri, J.
1. The petitioner seeks a writ of habeas corpus directing the respondents to produce his son namely, Mohammed Bin Ahmed s/o Azam Ali before this court and consequently set him at liberty forthwith by declaring the detention order as illegal.
2. On 27-9-1991 the Commissioner of Police, Hyderabad city, 2nd respondent herein, passed an order under sub-sec. (2) of S. 3 of Act 30/84 read with G.O.Rt. No. 1572 General Administration (Genl. A) Department dated 4-4-1991 directing that the detenu shall be detained under the said Act 30/84 and lodged in the Central Prison, Chanchalaguda, Hyderabad for a period of four weeks from the date of execution of the order. The grounds of the detention in support of the said order were supplied to him on 28-9-91. On 4-10-1991 the petitioner challenged the validity of the said order by filing a habeas corpus writ petition in W.P. No. 12979/91. On 9-10-1991 the Government of A.P., first respondent herein, approved the order passed by the 2nd respondent. On 15-10-1991 the detenu was produced before the Advisory Board. On 22-10-1991 the first respondent issued G.O.Rt. No. 4892 confirming the order of detention. The earlier writ petition filed by the petitioner (W.P. No. 12979/91) was dismissed by this court on 24-10-1991. However, on 24-10-1991 the Government extended the period of detention for a period of six months from the date of detention i.e. 28-9-1991 by an order issued in G.O.Rt. No. 4945. The petitioner filed the present writ petition on 31-10-1991 challenging the validity of the order of detention passed by the 2nd respondent and confirmation of the same by the first respondent in the above G.O.Rt. No. 4892.
3. The learned counsel for the petitioner submits that the grounds of detention do not disclose any offence u/S. 153-A, IPC; the satisfaction recorded by the 2nd respondent that the petitioner is a communal offender is wholly without application of mind and that the Act itself does not apply, therefore the detention order is liable to be quashed. He further submits that the 2nd respondent relied upon non-existing grounds in passing the order of detention against the petitioner. He also submits that at the time when the order of detention was extended, fresh grounds should exist and fresh satisfaction should be recorded, otherwise the extension order would be bad in law.
4. The learned Advocate-General raised preliminary objection with regard to the maintainability of the writ petition. It is submitted that the writ petition is barred by principle of constructive res judicata, as the ground on which this W.P. is based, was not taken in the earlier writ petition. It is further submitted that the detenu was supplied with the memo of Asst. Commissioner of Police dated 24-8-1991 for addition of S. 153-A, IPC in the FIR, therefore the order of detention is legal and valid. The first respondent is competent to issue orders extending the period of detention from time to time and therefore, the order granting extension of the period of detention to six months cannot be validly assailed.
5. We shall now take up the preliminary objection raised by the learned Advocate General as to whether the present writ petition is barred by the principle of constructive res judicata. The learned counsel for the petitioner relies on the judgment of the Supreme Court in Icchu Devi v. Union of India, and submits that strict rules of pleading cannot be applied in regard to the matters relating to writ of habeas corpus. In the said case the Supreme Court observed as follows (at page 1987 of Cri LJ) :-
“In case of an application for a writ of habeas corpus, the practice evolved by Supreme Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a post card written by a detenu from jail has been sufficient of activise the court into examining the legality of detention. The Supreme Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention.”
In Kirit Kumar v. Union of India, the Supreme Court held that the principle of res judicata does not apply to writ petitions filed against the order of detention under Art. 32 of the Constitution of India. In that case an earlier application filed under Article 226 of the Constitution of India, was dismissed by the High Court. Thereafter an application under Article 32 of the Constitution of India was filed challenging the order of detention. It was held by the Supreme Court, para 9 (of Cri LJ) :-
“Where a writ petition under Article 226 challenging detention is dismissed by the High Court and subsequently a writ petition under Art. 32 is filed and the petitioner raised certain additional points therein which were not raised before the High Court, the agitation of those points before the Supreme Court is not barred on principles of constructive res judicata. The principle of res judicata does not apply in cases where the points were not agitated before the High Court but were raised for the first time in Supreme Court in writ petition under Article 32.”
6. In Jethmal v. Union of India, 1986 Crl. LJ 1645 an order of detention passed under the COFEPOSA was challenged by the detenu under Art. 226 of the Constitution of India. That writ petition was dismissed. Subsequently he filed another writ petition challenging the same order on fresh grounds. A Division Bench of the Bombay High Court held that the subsequently writ petition was not barred by principle of constructive res judicata. The same view was taken by another Division Bench of Bombay High Court in Kochu Krishnan v. State of Maharashtra 1987 Crl LJ 1441. In Vikram Pratap Singh v. State of U.P., 1986 Crl LJ 954, a Division Bench of Allahabad High Court observed that it was then too late in the day to contend that the second habeas corpus petition filed by a detenu was not competent of he filed the same on an entirely fresh ground.
7. In so far as the writ of habeas corpus is concerned the courts have always been jealous in safeguarding the personal liberty of the citizens. The Supreme Court has done away with the procedural requirements in regard to writ of habeas corpus and entertained letters and the post cards and even telegrams as writ of habeas corpus. The High Courts have also been entertaining writ petitions on the basis of a letter or a telegram issued by the aggrieved party. It is true that a person cannot be permitted to agitate the same grounds by challenging the order of detention in successive writ petitions. But having regard to the history of this writ it would be in the interest of justice as also in accordance with our constitutional ethos not to deny the right to any person to approach this court by a subsequent petition on a ground not taken in earlier writ petition. The doctrine of constructive res judicata which is based on the principle of public policy of avoidance of multiplicity of proceedings cannot be invoked in proceedings of habeas corpus wherein the question is one of personal liberty of a citizen which is a principle of paramount importance and the most cherished constitutional objective of all the civilised nations. Therefore, the doctrine should yield to the constitutional objective. Both on principle as well as on authority we hold that the doctrine of constructive res judicata does not apply to proceedings of writ of habeas corpus when the subsequent writ petition is based on a ground not urged in earlier writ petition.
8. This leads us to examination of the question as to what grounds were urged in W.P. No. 12979/91 and what grounds are urged in this writ petition. That case went for default on the part of the learned counsel for the petitioner. However, from the material on record the court noticed that the ground urged in earlier writ petition was non-communication to the detenu the memorandum of grounds in the language known to him and not giving him an opportunity to make effective representation either to the Chief Secretary to Government or to the Advisory Board. The Bench found that translated copies were supplied and opportunity was also given to him. In the present writ petition, as noted above, the grounds urged are different. Therefore, we are of the opinion that this writ petition is not barred by the doctrine of constructive res judicata.
9. We shall now consider the contention of the petitioner that the grounds and the impugned order do disclose that the petitioner is a communal offender. It would be appropriate to extract S. 3(1) of Act 30/84, which empowers the detaining authority to pass order of detention.
“Sec. 3(1). The Government may, if satisfied respect to any communal offence with a view to prevent him in any manner prejudicial that of public order, it is necessary so to do make an order directing that such person be detained.
Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance exceed four weeks, but Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time so that the total period shall not exceed six months.”
From a perusal of the provision extracted above, it is evident that power of detention can be exercised by the Government only in respect of a ‘communal offender’ and on its satisfaction that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do. The proviso restricts the period of detention in the first instance to four weeks. However, it gives power to the Government to extend the period from time to time but the total period shall not exceed six months. Thus, an order issued u/S. 3(1) of Act 30 of 1984, to be valid must be in respect of a communal offender. The expression ‘communal offender’ is defined in S. 2(b) of the Act which reads as follows :
“Sec. 2(b). ‘Communal offender’ means a person who, either by himself or as a member or as a leader of a gang or an organisation commits or attempts to commit or abets or incites the commission of offences punishable under S. 153-A and S. 153-B of the I.P.C. or under Chapter XV of the said Code.”
10. Now we shall examine whether the detenu falls within the ambit of the definition of the expression ‘communal offender’.
11. It would be apt to refer to the grounds and the order of detention. In the order of detention it is mentioned that the second respondent was satisfied that the detenu is a ‘communal offender’ as defined under S. 2(b) of the Act and has acted in a manner prejudicial to the maintenance of public order as defined under Ss. 2 and 3 of Act 30/84. The grounds of detention mention that the detenu along with his associates has been indulging in the commission of offences adversely affecting the communal harmony in the city Hyderabad. It is stated that the detenu with his associates armed with lethal weapons attacked the house of Nagesh s/o Late Shankara Babu, a vegetable vendor resident of Baggikhana and that in connection with that incident Crime No. 330/91 u/Ss. 147, 148, 452 r/w 149, IPC and Ss. 25 and 27 of the Indian Arms Act was registered in Narayanaguda Police Station. Thus, it can be seen that the grounds of detention do not refer to any offence u/S. 153-A, IPC nor any case under Chapter XV is registered against him. Therefore, the petitioner does not come under the discription of ‘communal offender’ as defined under S. 2(b) of Act 30/84. If that be so, no order of detention can be passed against him under S. 3(2) of the Act. Thus, the order of detention clearly shows the non-application of mind by the detaining authority. The grounds do not show any nexus between the order passed by the detaining authority and the activities of the detenu contained in the grounds of detention. The addition of S. 153-A, IPC subsequently in the FIR, in our view, does not alter the position, as the grounds of detention do not contain this section as one of the grounds.
12. For the above reasons we are unable to sustain the order of detention passed by the 2nd respondent in SB (1) No. 11/S7/COA/91 dated 27-9-91. Consequently the order passed by the Government in G.O.Rt. 4711 dated 9-10-91 approving the said order of the second respondent and the order passed in G.O.Rt. No. 4892 dated 22-10-1991 confirming the said order and the order extending the impugned order of detention in G.O.Rt. No. 4945 dated 24-10-91 also cannot be sustained. They are declared as illegal and unconstitutional.
13. The Writ Petition is therefore allowed and the respondents are directed to set the detenu at liberty forthwith if he is not required in any other cause.