IMPORTANT POINT
Principle of res-judicata is inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus on fresh grounds.

JUDGMENT

Arijit Pasayat, J. - Leave granted.

2. Appellant calls in question legality of the judgment of the Division Bench of the Karnataka High Court dismissing the Habeas Corpus Petition filed questioning detention of his brother Shri Shivalingappa (hereinafter referred to as the detenu) under the provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985 (in short the Act). The detention order was passed on 26.5.2005 by the District Magistrate holding that the detenu was indulging in such activities which amounted to immoral activities as detailed in the Act. The order of detention was approved by the State Government and the Advisory Board. The main ground of challenge in the writ petition was alleged non-compliance with the procedure contemplated under Article 22(5) of the Constitution of India, 1950 (in short the Constitution). It was specifically averred that detaining authority has not provided the opportunity of making representation and the right of the detenu to make such representation was not made known to the detenu. The detaining authority and other respondents resisted the petition on the ground that the appellant had already moved the High Court by filing a writ petition i.e. W.P. (HC) No. 56 of 2005 and the same had been dismissed by order dated 6.10.2005 and there was no challenge to the same. It was pointed out that the grounds taken in the Second Writ Petition were identical to those taken in the earlier writ petition and/or were available to be raised when the earlier writ petition was filed. It was contended by the appellant before the High Court that in view of the decision of this Court in Ghulam Sarwar v. Union of India and Ors. (AIR 1967 SC 1335) the Principle of res judicata or constructive res judicata would apply only in the case of civil actions and proceedings and do not bar subsequent writ petition in the matter of habeas corpus petition where personal liberty of citizen is involved. The High Court found that though the successive writ petition can be filed challenging the detention, yet it has to be shown that fresh grounds were involved and not the grounds which were already raised or were available to be raised. Accordingly the writ petition was dismissed.

3. Learned counsel for the appellant submitted that though the petition had become infructuous by passage of time, the issues of great importance were involved and the matter should be decided on merits. It was submitted that by a series of decisions it has been held that successive habeas corpus petitions can be filed and the principle of res judicata or constructive res judicata has no role to play.

4. Learned counsel for the respondents submitted that in the second writ petition no new ground was taken and since points were already raised or were available to be raised maintainability of the subsequent writ petition was ruled out.

5. The question relating to res judicata in habeas corpus petition was considered by this Court in several cases. In T.P. Moideen Koya v. Govt. of Kerala and Ors. (2004 (8) SCC 106) after reference to Gulam Sarwars case (supra) this Court held as under :

"This question was examined in considerable detail by a Constitution Bench in Ghulam Sarwar v. Union of India and Ors. (AIR 1967 SC 1335). In this case the petitioner who was detained under Section 3 (2) (g) of the Foreigners Act 1946 filed a petition for issuing a writ of habeas corpus which was dismissed by a learned Single Judge of the High Court and the said judgment was allowed to become final. Thereafter the petitioner filed a writ petition under Article 32 of the Constitution in the Supreme Court praying that he may be set at liberty. Subba Rao, CJ, after referring to the Daryao v. State of U.P. (supra), in Re Hastings (2), 1958 3 All ER 625, in Re Hastings (3), 1959 1 All ER 698 and some other English and American cases held, as under:

"The principle