2004 Supreme(SC) 1215

2004(8) Supreme 228
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
T.P. Moideen Koya -Petitioner
versus
Government of Kerala & Ors. -Respondents
Writ Petition (Crl.) No. 69 of 2004
Decided on 30-9-2004
Counsel for the Parties :
For the Appellant : P.K. Manohar, Advocate.
For the Respondents : A. Sharan, Additional Soliciter General, P.P. Khurana and T.L.V. Iyer, Sr. Advocates, Hemant Sharma, P. Parmeswaran (NP), B. Krishna Prasad (NP), John Mathew and K.R. Sasiprabhu (NP), Advocates.

IMPORTANT POINT
Bar of res-judicata or principles analogous thereto would not apply to a writ petition of habeas corpus but if petition is dismissed by High Court and judgment is affirmed by Supreme Court in SLP under Article 136 of Constitution which attained finality would bind parties and same cannot be reagitated in petition under Article 32 of the Constitution.

Headnote:(i) Constitution of India-Article 32-Writ of habeas corpus-Bar as to maintainability of petition under Article 32 of the Constitution after dismissal of SLP preferred against judgment of High Court whereby habeas corpus petition for release of detenu was dismissed-Bar of res judicata principle analogous thereto would not apply to a writ of habeas corpus-However decision rendered by Supreme Court in proceedings under Article 136 of the Constitution which attained finality would bind parties and same cannot be reagitated or reopened in a subsequent petition under Article 32 of the Constitution.

       Held : The principle which can be culled out from this authorities is that 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 has been filed under Article 226 of the Constitution 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 of the Constitution 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 Special Leave Petition under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus. (Para 11)

       While hearing a special leave petition 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, 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 this Court in proceedings under Article 136 of the Constitution which has attained finality, would bind the parties and the same issue cannot be re-agitated or re-opened in a subsequent petition under Article 32 of the Constitution. We would like to clarify here that the subsequent petition under Article 32 of the Constitution 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. To illustrate, a detenu soon after his detention may file a habeas corpus petition on the ground that the concerned officer of the Government passing the detention order had no authority to do so or the grounds of detention relate to "law and order" and not to "public order" (in a case where detention order has been passed under National Security Act). If such a petition is dismissed by the High Court and the judgment is affirmed by this Court in a special leave petition under Article 136 of the Constitution, it would always be open to him to file a petition under Article 32 assailing his continued detention on the ground of inordinate and unexplained delay in consideration of his representation or some procedural infirmity which may have occurred subsequent to the decision of this Court. (Paras 14 and 15)

       (ii) PREVENTIVE DETENTION-Person already in jail in respect of criminal offence-No bar in passing detention order even against such a person if detaining authority was subjectively satisfied from the material placed before it that detention order should be passed-There must be cogent material before authority passing detention for inferring that detenu was likely to be released on bail. (Paras 19 to 22)