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Srikant Versus District Magistrate, Bijapur & Ors

Appeal (crl.) 1201 of 2006 (Arising out of SLP (CRL.) No.666 of 2006) - Dated:- 22-11-2006 - ARIJIT PASAYAT & LOKESHWAR SINGH PANTA, JJ. JUDGMENT ARIJIT PASAYAT, J. Leave granted. 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 A .....

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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. .....

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dicata 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 dismi .....

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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. U .....

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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 of application of res judicata is not applicable in Writ of Habeas Corpus, so far as High Courts are concerned. The principles accepted by the English and American Courts, viz., that res judicata is not applicable in Writ of Habeas Corpus holds good. But unlike in England, in India the person detained can file original p .....

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tion 3 (2) of the Preventive Detention Act by filing 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 r .....

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on 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 .....

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t a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by law. It is in the interest of public at large that finality should attach to the binding decisions pronounced by a court of competent 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 t .....

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f the Constitution was approved in Daryao v. State of U.P. (supra) (see para 14 of the report)." In Lallubhai Jogibhai Patel v. Union of India and Ors. (AIR 1981 SC 728) it was noted as follows: "The preliminary question, therefore, to be considered is, whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a ground which he "might and ought" to have taken in his earlier petition for the same relief. In England, befor .....

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