TMI Blog2006 (11) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pus petitions can be filed and the principle of res judicata or constructive res judicata has no role to play. 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. 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 Sarwar's 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling a writ petition under Article 226 of the Constitution before the Calcutta High Court, but the petition was dismissed. Thereafter they filed a writ petition under Article 32 of the Constitution in this Court. The objections raised by the State regarding maintainability of the petition was repelled and it was held that a petition under Article 32 of the Constitution for the issue of writ of habeas corpus would not be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decided and no appeal is brought up to the Supreme Court against that decision. Similar view has been taken in Niranjan Singh v. State of Madhya Pradesh (1972 (2) SCC 542). 11. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. While hearing a petition under Article 32 it is not permissible for this Court either to exercise a power of review or some kind of an appellate jurisdiction over a decision rendered in a matter which has come to this Court by way of a petition under Article 136 of the Constitution. The view taken in Bhagubhai Dullabhbhai Bhandari v. District Magistrate (AIR 1956 SC 585) that the binding nature of the conviction recorded by the High Court against which a Special Leave Petition was filed and was dismissed can not be assailed in proceedings taken under Article 32 of the Constitution was approved in Daryao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1960. In the said case reference was also made to the earlier decision in Gulam Sarwar's case (supra). The position was finally summed up as follows: 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. 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 on fresh grounds, which were not taken in the earlier petition for the same relief. Whether any new ground has been taken, has to be decided by the Court dealing with the application and no hard and fast ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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