IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.6.2010 C O R A M The Honourable Mr. Justice C.NAGAPPAN and The Honourable Mr. Justice P.R.SHIVAKUMAR Habeas Corpus Petition No.264 of 2010 Tmt. Loga W/o. Mari .. Petitioner Vs. 1. The Secretary to Government Home, Prohibition & Excise Dept., Secretariat, Chennai-600 009. 2. The District Collector and District Magistrate, Thiruvallur District, Thiruvallur. .. Respondents PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus directing the respondents to produce the detenu Mari, son of Appadurai, aged 42 years, who is now detained in Central Prison, Puzhal, Chennai-600 066 in pursuance of the order passed by the second respondent on 16.7.2009 in BDFGiSSV No.142/2009 before this Hon'ble Court, call for the records and set aside the order and set the detenu at liberty forthwith. For Petitioner : Mr. S.Swamidoss Manokaran For Respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor O R D E R
(Order of the Court was made by P.R.SHIVAKUMAR, J.)
The wife of the detenu Thiru.Mari is the petitioner herein and this Habeas Corpus Petition, assailing the order of detention dated 16.7.2009 passed by the second respondent in B.D.F.G.I.S.S.V.No.42/2009, is the second one filed by the petitioner.
2. In order to arrive at subjective satisfaction that the detenu Thiru.Mari was to be termed a “Sand Offender” as contemplated under Section 2(gg) of Tamil Nadu Act 14/1982, the Detaining Authority viz., the second respondent, noticed as many as four adverse cases, in (1) Crime No.134/2008, on the file of K.K.Chatram Police Station, for alleged offences under Sections 379, 430 IPC and Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957; (2) Crime No.121/2009, on the file of K.K.Chatram Police Station, for alleged offences under Sections 353, 506(ii), 379, 430 IPC r/w Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 ; (3) Crime No.229/2009, on the file of K.K.Chatram Police Station, for alleged offences under Sections 353, 506(ii), 379, 430 IPC r/w Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 and (4) Crime No.253/2009, on the file of K.K.Chatram Police Station, for alleged offences under Sections 353, 506(ii), 379, 430 IPC r/w Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 and also the ground case registered in Crime No.255/2009, on the file of K.K.Chatram Police Station, for alleged offences under Sections 379, 430 IPC and Section 4(1), 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 r/w 294(b) and 307 IPC. The said order of detention is now assailed by the wife of the petitioner seeking an Order quashing the detention order and directing his release in this second Habeas Corpus Petition.
3. The earlier Habeas Corpus Petition viz., H.C.P.No.1422 of 2009 was considered by this Court and dismissed by an elaborate Order on 6.11.2009. Subsequent to the dismissal of the said earlier Habeas Corpus Petition, the petitioner seems to have sent a representation to the first respondent seeking revocation of the order of detention, which is under challenge in this second Habeas Corpus Petition and the present Habeas Corpus Petition is filed on the ground that the said representation has not been considered and disposed of expeditiously. In addition to the said ground, the petitioner has also raised another ground, namely, the discrepancies found in the documents supplied by the Sponsoring Authority to the Detaining Authority and considered by the Detaining Authority, were not noticed by the Detaining Authority while arriving at a conclusion that it was necessary to clamp the order of detention.
4. We have heard the submissions of Mr.S.Swamidoss Manokaran, learned counsel for the petitioner and that of Mr.M. Babu Muthu Meeran, learned Additional Public Prosecutor representing the State. 5. As it is the second petition, the sustainability of the same, in the light of the fact that the earlier petition was dismissed on merits, arises as an important question. Ofcourse it is conceded that the principle of constructive res judicata shall not be applicable to Habeas Corpus Petition seeking the enforcement of right of personal liberty guaranteed under Article 21 of the Constitution of India. However it is contended by the learned Additional Public Prosecutor on behalf of the respondents that though strictly speaking the principle of constructive res judicata shall not be applicable to Habeas Corpus Petitions seeking the enforcement of personal liberty guaranteed as a fundamental right by the Constitution of India, judicial etiquette shall prevent a second petition being sustained on the same grounds which were raised/considered and decided against the petitioner. It is the further contention of the learned Additional Public Prosecutor that a Court dealing with such a question might have arrived at a wrong conclusion, but the same does not mean that the very same question can be re-agitated in a second petition and that the remedy in such cases available to the aggrieved party shall be to approach the superior Forum. 6. In this case, ofcourse it is true that the first ground raised by the petitioner viz., the alleged failure on the part of the first respondent to consider the representation made by the petitioner subsequent to the disposal of the earlier Habeas Corpus Petition, if it is established, shall be a valid ground of attack which can be canvassed in the present Habeas Corpus Petition. However, the second ground taken by the petitioner seems to be a repetition of the ground specifically taken and negatived in the earlier Habeas Corpus Petition. A copy of the affidavit filed in the earlier Habeas Corpus Petition No.1422 of 2009, is also produced in the typed set of papers filed by the petitioner. Ground No.10 of the said affidavit reads as follows: "10. The detaining authority has failed to apply his mind in the documents placed before him and failed to clarify the major discrepancy found in the remand orders placed before him at the time of passing the order of detention."
7. The said ground encompasses in itself all the ingredients of the second contention raised in the present Habeas Corpus Petition. The grievance expressed by the petitioner in the present Habeas Corpus Petition in the second ground is that there are several discrepancies regarding the Registration Number of the vehicle allegedly used by the detenu in the commission of offence. Though such a specific ground was raised in the affidavit filed in support of the earlier Habeas Corpus Petition, the Order passed in the earlier Habeas Corpus Petition, ofcourse, does not specifically refer to the same. However, after going through the Order passed by the other Division Bench of this Court in the earlier Habeas Corpus Petition, we are able to understand that the said ground, though raised, was not canvassed by the petitioner in the earlier Habeas Corpus Petition.
8. In the Judgment relied on by the learned counsel for the petitioner viz., SHRI LALLUBHAI JOGIBHAI PATEL VS. UNION OF INDIA AND OTHERS (1981 SCC (Cri) 463), the Honourable Supreme Court has made the following observation:-
“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. The 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.”
In paragraph No.16 of the said Judgment, the following observations have also been made:-
“16. In the previous petition, though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing the impugned order of detention, no specific ground was taken that documents covering about 236 pages which were relied upon by the detaining authority in passing the order of detention, were suppressed and not supplied to the petitioner. Indeed, this is not denied in the counter-affidavit. The petitioner has affirmed in his affidavit that he came to know about the non-supply of these documents from the judgment of the Gujarat High Court subsequent to the dismissal of his earlier petition. This affirmation remains unchallenged.”
9. The permissibility of entertaining successive Habeas Corpus Petitions was again dealt with by the Honourable Supreme Court in a recent case in SRIKANT VS. DISTRICT MAGISTRATE, BIJAPUR AND OTHERS (2007) 1 SCC 486). In the said case also, the Honourable Supreme Court has held that second Habeas Corpus Petition challenging the order of detention can be entertained provided it is based on new grounds, which were not either raised or canvassed in the earlier petition. To sustain a second petition, it shall not be enough to make some surgical changes in the grounds urged in the earlier petition to camouflage the very same ground taken in the earlier petition, as if a new ground is taken for the first time. This was the expression made by the Honourable Supreme Court in the decision in SRIKANT VS. DISTRICT MAGISTRATE, BIJAPUR AND OTHERS (cited supra).
10. In the case on hand, as pointed out supra, a specific ground was raised in the affidavit filed in the earlier Habeas Corpus Petition as ground No.10 that the detaining authority failed to apply its mind to the documents placed before him and failed to clarify a major discrepancy found in the remand orders placed before him. Though such a specific ground was raised, it seems the same was neither argued nor canvassed. To raise a ground to attack in the second petition, such ground should not have been either raised or canvassed or considered in the earlier petition. In the present case, since the said ground was raised in the earlier petition, this second Habeas Corpus Petition shall fail on the second ground raised on behalf of the petitioner.
11. So far as the first ground raised on behalf of the petitioner is concerned viz., non-consideration and failure to dispose of the representation seeking revocation of the order of detention submitted by the petitioner to the first respondent after the dismissal of the earlier Habeas Corpus Petition, is concerned, the answer is found in the counter filed by the second respondent, in which, it has been stated that the said representation dated 30.1.2010 was sent to the Government and remarks of the Detaining Authority to the representation was sent to the Government on 26.2.2010 and the Government, after careful consideration, have rejected the same on 12.3.2010. Therefore, we are of the considered view that the first ground raised by the learned counsel for the petitioner is also not available as a ground of attack to the petitioner. On both the grounds, this second Habeas Corpus Petition is bound to fail and is liable to be dismissed.
12. Accordingly, the Habeas Corpus Petition is dismissed.
(C.N.J.) (P.R.S.J.)
29.6.2010
Index: yes/no.
Internet: yes/no.
vks
Copy to:-
1. The Secretary to Government
Home, Prohibition & Excise Dept.,
Secretariat, Chennai-600 009.
2. The District Collector and
District Magistrate,
Thiruvallur District,
Thiruvallur.
3. The Public Prosecutor,
High Court, Madras-104.
C.NAGAPPAN, J.
and
P.R.SHIVAKUMAR, J.
vks
H.C.P. No.264 of 2010
29.6.2010