TMI Blog2006 (9) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of Breach of Privilege of the House after an enquiry by an order dated 11th /12th April, 2006. The Petitioner had filed an earlier Writ Petition against this impugned order, being Criminal Writ Petition No. 873 of 2006 in this Court on 15.4.2006. On 21.6.2006, the Learned Division Bench of Shri D.G. Deshpande, J. and Shri S.A. Bobde, J. had directed that this matter be placed before the Chief Justice for constituting a larger bench. The matter was finally heard by a Full Bench on 28.6.2006. By an order dated 4.7.2006, the Full Bench had dismissed the said Writ Petition on the grounds that the court can't interfere with the order passed by the House, while exercising its jurisdiction under Article 226 of the Constitution of India, as the House had given a fair opportunity of hearing through its Privilege Committee, and that as there was a privilege, with regard to which the House was competent to take action. 3. Being aggrieved by the very same order dated 11th /12 th April, 2006, the Petitioner has again preferred this Writ Petition under Article 226 of the Constitution of India for a Writ of Habeas Corpus on grounds which were not urged in the earlier petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with the Petitioner's prayer for Habeas Corpus on the date on which it was disposed off by the Full Bench on 4.7.2006. Hence this prayer for Writ of Habeas Corpus in the petition was being considered for the first time and therefore the present Writ Petition was not a second Writ Petition for Habeas Corpus. Reliance was also strongly placed by Mr. Jethmalani, the Learned Senior Counsel for the Petitioner on the judgment of Lallubhai Jogibhai v. Union of India stating that the above contention was clear from paragraph 13 of the said judgment as follows: 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 of India on fresh grounds which were not taken in the earlier petition for the same relief. This principle was also reiterated in the judgments of Supreme Court in Sunit Dutt v. Union of India and Kirit Kumar Chamanlal v. State of Gujarat 1981 2 SCC 437. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior Counsel that the rest of the Judgment had no relevance or applicability whatsoever even to the preliminary issue. The rest of the Koya (supra) judgment was refuted by Mr. Jethmalani on the basis of the following points: a) In the Koya case, the Special Leave Petition before the Supreme Court under Article 136 of the Constitution of India was entertained and the Appeal was dismissed by a detailed judgment wherein all the contentions raised challenging the detention order and also the continued detentions of the petitioner were challenged. In these circumstances the Supreme Court had held that it would not be permissible for it to exercise an appellate power or sit in review over a decision rendered by the court under Article 136 of the Constitution of India, by entertaining a Writ Petition under Article 32 of the Constitution of India. It was contended that on the other hand in the instant case the Petitioner is challenging the illegality of the sentence. b) It was contended that the bar of Res Judicata would only apply when the Supreme Court had earlier considered the matter in its entirety in a petition under Article 136 of the Constitution of India. For this purpose th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As under the doctrine of finality of decisions of a competent court would be beaten. 11. Mr. Kumbhakoni therefore submitted that the petitioner did not choose to challenge the order in the earlier petition or challenged it unsuccessfully and therefore the grounds should not be allowed to be raised when it was available to him at the hearing of the first petition. 12. Mr. Rafique Dada, learned Senior Counsel appeared as amicus curiae and addressed the issue of maintainability of the subsequent petition under Article 226 of the Constitution of India and cited several judicial decisions that have laid down the position of law as regards to the preliminary objection as to maintainability of this present petition, being a second Petition for a Writ of Habeas Corpus. 13. Referring to the petition, in paragraph 6, page 4, it was made clear that the present petition proceeded on grounds 'which were not urged in the earlier writ petition' i.e. in effect, the petition proceeded on 'additional' grounds. Paragraph 6 of the Petition also prays for direction for release. This implies that the petition is challenging the detention order, which has been challenged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except in circumstances laid down in the said judgment. 18. Mr. Dada submitted that the Bombay High Court judgment in Deepesh Mahesh case has relied upon the case of Lallubhai Jogibhai Patel (supra), which in turn has followed the Punjab High Court's ratio (infra). Paragraph 13 of the Supreme Court judgment in Lallubhai's case holds that constructive res judicata is confined to civil proceedings; inapplicable to illegal detention and it does bar a subsequent petition under Article 32 on fresh grounds that were not taken in the earlier petition for the same relief. 19. Mr. Dada relied upon the ratio of Sunil Dutt v. Union of India paragraph 38 of which categorically stated that dismissal of an earlier writ petition of habeas corpus is not bar to maintainability of a subsequent writ petition however, subject to the above limitations. It was submitted that in the case of Kirit Kumar Chamanlal Kundalia v. State of Gujarat India (supra), the criminal matter in appeal and writ petition under Article 32 of the Constitution of India were heard together. Paragraph 9 of the judgment clearly said that if res judicata could not apply to subsequent writ petitions under Article 32, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct petitioning against the order itself, which has been challenged earlier. This would not, in any sense fit into the category of a 'fresh' ground or cause of action for which a second writ petition could be filed. 23. After hearing all the Learned Counsels at length, we find as the learned Counsel for the Petitioner had contended, in the earlier petition, the prayer of Habeas Corpus did not survive due to the subsequent release of the detenu from custody. By maintaining this stand, the counsel would be prejudicing his subsequent petition on the same grounds, as the detenu has been released in the present scenario too. Applying the same argument to the present petition, we find that the prayer clause seeking a writ of Habeas Corpus would not survive, thus making the present petition infructuous and not maintainable. 24. Counsel for the Petitioner also claimed that in the earlier petition, the entire order of conviction of the House was being challenged, whereas in the subsequent petition it's only the sentence is being challenged. We do not accept this contention because as the counsel for respondent No. 3 had mentioned, the order finding the detenu guilty, the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies unless it is modified or reversed by adopting a procedure established 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 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 or by way of a petition under Article 136 of the Constitution. The view taken in Bhagubhai Dullabhai Bhandari v. District Magistrate that the binding nature of the conviction recorded by the High Court against which an Special Leave Petition was filed and dismissed cannot be assailed in proceedings taken under Article 32 of the constitution was approved in Daryao v. State of UP . 14. ... A decision rendered by this Court in proceeding under Article 136 of the constitution which has attained finality, would bind the parties and the same issue cannot be re agitated or reopened in a subsequent petition under Article 32 of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r custody has arisen after the decision of the first petition and also where for some exceptional reason a ground has been omitted in an earlier petition, and in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. In the last case it is only a ground which existed at the time of earlier petition, Page 3431 and was omitted from it, that will be considered. Second petition will not be competent on the same ground merely because an additional argument is available to be urged with regard to the same, 30. In the present case the order of detention was passed on 11th /12th April 2006. It specified clearly the quantum of punishment, which is 90 days, as also the manner in which this punishment was to be undergone. Hence the cause of action arose from the very detention order and all grounds ought to have been raised in the first petition. The ground raised in this Petition is not a new/fresh ground subsequent to the judgment in the first Petition. At the same time, the counsel for the petitioner has failed to show any exceptional circumstance due to which the ground was not urged, in fact there is no such plea in the Petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
