ition No 4349 of 1980
Under Article 32 of the Constitution 354 Ms Ram Jethmalani Anil Dewan Harjinder Singh and section H Sajanwala for the Petitioner
J L Nain Sushil Kumar and M N Shroff for the Respondents
The Judgment of the Court was delivered by SARKARIA J
By our order dated October 3 1980 we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu
We are now giving the reasons in support of that order
On January 30 1980 the petitioner Lallubhai Jogibhai Patel was served with an order of detention dated January 30 1980 passed by Shri P M Shah Deputy Secretary to the Government of Gujarat Home Department under Section 3 of the for short the COFEPOSA
The grounds of detention were also served on him on the same day
The petitioner challenged the order of his detention by Writ Petition No 449 of 1980 in this Court
That petition was dismissed by this Court by an order dated May 9 1980 but the reasons for that order were announced later on August 4 1980
After the dismissal of his petition he on July 21 1980 filed additional grounds
He was on July 30 1980 informed that he may if so advised file a fresh petition on those additional grounds
That is how this subsequent petition came to be filed on additional grounds which were not urged in the previous Writ Petition 449 of 1980
A preliminary objection was raised on behalf of the respondent State that this subsequent petition is barred as constructive res judicata
In this connection reference has been made to the decision of this Court in Ghulam Sarwar vs Union of India  Ors
and Seervai s Constitutional Law
In reply Shri Ram Jethmalani counsel for the petitioner contended that this Court cannot refuse to entertain a second petition for habeas corpus on a fresh ground which could not for good reasons be taken in the earlier writ petition on the ground that it is barred by any doctrine of estoppel or constructive res judicata
It is stressed that a preventive detention illegally continued is a continuous wrong and furnishes a continuous cause of action to the detenu to challenge the same on fresh grounds
In this connection reference has been 355 made to a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal vs District Magistrate Delhi
On facts counsel has tried to distinguish the decisions of this Court in Daryao vs State of Uttar Pradesh and Niranjan Singh vs State of Madhya Pradesh
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 before the Judicature Act 1873 an applicant for habeas corpus had a right to go from court to court but not from one Bench of a court to another Bench of the same Court
After the Judicature Act 1873 this right was lost and no second application for habeas corpus can be brought in the same court except on fresh evidence
In re Hastings No 3 Lord Parker CJ after surveying the history of the right of habeas corpus arrived at the conclusion that it was never the law that in term time successive writs of habeas corpus lay from Judge to Judge
In re Hostings No 4
Harman J pointed out that since the Judicature Act had abolished the three independent courts namely the Court of Exchequer the King s Bench Division and the Common Pleas and had constituted one High Court when an application for writ of habeas corpus has been disposed of by one Divisional Court no second application on the same ground lies to another Divisional Court of the High Court
This position was given statutory recognition in the Administration of Justice Act 1960
In a Full Bench decision of the Punjab High Court which purports to follow these English decisions and two decisions of this Court in Daryao vs State of UP ibid and Calcutta Gas Co Proprietary Ltd vs State of West Bengal it was held as follows No second petition for writ of habeas corpus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court
However a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition and also where for some exceptional reason a ground has been omitted in an earlier 356 petition 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 the earlier petition 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 urge with regard to the same
 In Daryao s case ibid Gajendragadkar J as he then was speaking for the Constitution Bench held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified a subsequent petition to the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata
It was further clarified that the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis on which the said rule rests is founded on considerations of public policy
It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts 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
If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32
It was also noted that the liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution and it is the privilege and the duty of this Court to uphold those rights
Though a right is given to the citizen to move this Court by a petition under Article 32 and to claim an appropriate writ against the unconstitutional infringement of his fundamental rights yet in dealing with an objection based on the principle of res judicata may even apply to a successive petition
The Court was careful enough to add We propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution
That is a matter with which we are not concerned in the present proceedings
It may be noted that the petitions which were before the Court in Daryao s case were civil matters and not petitions for issue of a writ of habeas corpus
Even so it was clarified in that case that the 357 principle of constructive res judicata as embodied in Section 11 of the Code of Civil Procedure was of a technical character and this principle was not one of universal application
In Ghulam Sarwar s case ibid the Constitution Bench of this Court was dealing with a petition under Article 32 of the Constitution which had raised the question of the validity of the detention of the petitioner under Section 3 of the 
The petitioner was a Pakistani national who entered India without any travel documents
On May 8 1964 he was arrested in New Delhi by the Customs Authorities under Section 135 of the 
When he was about to be enlarged on bail he was detained by an order under Section 32g of the 
It was said that he had to be detained as police investigation was in progress in respect of a case of conspiracy to smuggle gold of which he was a member
On May 29 1965 he was convicted by the Magistrate of an offence under the and sentenced to imprisonment
His appeal was dismissed by the Sessions Judge
Before his term of imprisonment expired the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court challenging his detention
The petition was dismissed by Khanna J on merits
Before the learned Judge the constitutional validity of Section 32 g of the Act was not canvassed
The learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court could not question its validity in the absence of any mala fides
In short he dismissed the petition on merits
Thereafter Ghulam Sarwar filed a petition under Article 32 of the Constitution for issue of a writ of habeas corpus against the respondent on the ground that the provisions of the Act were invalid
On behalf of the respondents a preliminary objection was raised that the decision of Khanna J of the Punjab High Court operated as res judicata and barred the maintainability of the subsequent petition under Article 32
Reliance was placed on the decision of this Court in Daryao s case
After observing that Daryao s case was no authority in regard to the repeated applications for habeas corpus and examining English and American decisions the learned Chief Justice Mr Justice Subba Rao summed up the position thus But unlike in England in India the person detained can file original petition for enforcement of his fundamental right to liberty before a court other than the High Court namely this Court
The order of the High Court in the said writ is not res judicata as held by the English and the 358 American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order
If the doctrine of res judicata is attracted to an application for a writ of habeas corpus there is no reason why the principle of constructive res judicata cannot also govern the said application for the rule of constructive res judicata is only a part of the general principle of the law of res judicata and if that be applied the scope of the liberty of an individual will be considerably narrowed
The present case illustrates the position
Before the High Court the petitioner did not question the constitutional validity of the President s order made under Article 359 of the Constitution
If the doctrine of constructive res judicata be applied this Court though it is enjoined by the Constitution to protect the right of a person illegality detained will become powerless to do so
That would be whittling down the wide sweep of the constitutional protection On these premises it was held that the order of Khanna J made in the petition for habeas corpus filed by the petitioner does not operate as res judicata and this Court will have to decide the petition on merits
In his concurring judgment Bachawat J while holding that the order of dismissal by the High Court does not operate as res judicata and does not bar the petition under Article 32 of this Court asking for the issue of a writ of habeas corpus on the same facts clarified that the petitioner would not have the right to move this Court under Article 32 more than once on the same facts
In Niranjan Singh s case supra the District Magistrate of Gwalior by his order dated May 26 1971 passed under Section 2A of the Madhya Pradesh Public Security Amendment Act of 1970 detained the petitioner
The petitioner filed a writ petition under Article 226 of the Constitution challenging his detention and praying for a writ of habeas corpus
The petition was rejected by the High Court
Thereupon the detenu moved this Court by a petition under Article 32 of the Constitution for the same relief
A preliminary objection was taken on behalf of the respondent that the petition was barred by res judicata
Following the earlier decision of this Court in Ghulam Sarwar s case ibid
Jaganmohan Reddy J speaking for a Bench of two learned Judges over ruled this objection
359 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
In the present petition fresh additional grounds have been taken to challenge the legality of the continued detention of the detenu
We would therefore hold that the subsequent writ petition is not barred as res judicata and over rule the preliminary objection raised by the respondents
The additional grounds which have been pressed into arguments by Shri Ram Jethmalani are 1 The respondents failed to supply despite the request of the detenu all the documents which were relied upon by the detaining authority while passing the order of his detention that the detaining authority purported to give him 460 documents but later on the detenu discovered that their number was less and many of them were either incomplete or had been wholly withheld that in particular 236 documents covering 236 pages were not supplied
This is alleged in ground No 13 of the present petition
In reply to this in para 17 of the counter affidavit filed on behalf of the respondents it is admitted that all the documents had not been given to the detenu and he had been supplied enough documents which were thought to be sufficient to enable him to make an effective representation
The petitioner came to know about the non supply of these documents from the copy of the judgment dated May 13 1980 of the Gujarat High Court passed in the allied writ petitions filed on behalf of other detenus who were alleged to be the associates of the present petitioner
2 On July 17 1980 a representation was made on behalf of the detenu with a request that the same be forwarded to the Central Government for exercise of its power of revocation of the detention under Section 11 of the Act
The Jailor forwarded that representation to the Central Government on July 18 1980 but the same has not yet been disposed of
This plea is the subject of grounds 16 17 and 26 of the Writ Petition
360 A reply to these allegations is to be found in paragraphs 20 and 21 of the counter filed on behalf of the respondents wherein it is admitted that the jailor has sent the representation at the detenu s request to the Central Govt
3 The grounds served on the detenu were in English
The detenu does not know English
It is stated in the affidavit of the person who served the grounds  that they were explained to the detenu in Gujarati which is the mother tongue of the detenu
Admittedly no translation into Gujarati of the grounds of detention was given to the detenu on March 11 1980
This being the case there was a breach of the constitutional imperative which requires that the grounds should be communicated to the detenu
It can be spelled out therefrom that the grounds must be communicated in a language which the detenu understands
In support of this contention reference has been made to Haribandhu Das vs District Magistrate Cuttack  Anr
and the judgment dated June 23 1980 in Bakshi s case
Contention No 1 In the previous petition though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing the impugned order of detention no specific ground was taken that documents covering about 236 pages which were relied upon by the detaining authority in passing the order of detention were suppressed and not supplied to the petitioner
Indeed this is not denied in the counter affidavit
The petitioner has affirmed in his affidavit that he came to know about the non supply of these documents from the judgment of the Gujarat High Court subsequently to the dismissal of his earlier petition
This affirmation remains unchallenged
A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 225 of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu as soon as practicable to enable him to make an effective representation
Recently in Smt
Icchu Devi Choraria vs Union of India  Ors
 this Court reiterated the principle as follows One of the basic requirements of clause 5 of Article 22 is that the authority making the order of detention must as soon as may be communicate to the detenu the grounds 361 on which the order of detention has been made and under sub section 3 of Section 3 of the COFEPOSA Act the words as soon as may be have been translated to mean ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention
 The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention but in exceptional circumstances and for reasons to be recorded in writing the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention
These are the two outside time limits provided by Section 3 sub section 3 of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu it would not be possible for him to make a requirement against the order of detention and it is a basic requirement of clause 5 of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention
If the grounds of detention are not furnished to the detenu within five or fifteen days as the case may be the continued detention of the detenu would be rendered illegal both on the ground of violation of clause 5 of Article 22 as also on the ground of breach of requirement of Section 3 sub section 3 of the COFEPOSA Act
Now it is obvious that when clause 5 of Article 22 and sub section 3 of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days as the case may be what is meant is that the grounds of detention in their entirety must be furnished to the detenu if there are any documents statements or other materials relied upon in the grounds of detention they must also be communicated to the detenu because being incorporated in the grounds of detention they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them
It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention but of the documents statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause 6 of Article 22 in order 362 to constitute compliance with clause 5 of Article 22 and Section 3 sub section 3 of the COFEPOSA Act
 In the instant case the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention
In other words they were a part of the basic facts and materials and therefore according to the ratio of Smt
Icchu Devi s case ibid should have been supplied to the detenu ordinarily within five days of the order of detention and for exceptional reasons to be recorded within fifteen days of the commencement of detention
In the counter affidavit it has not been asserted that these documents which were not supplied were not relevant to the case of the detenu
Contention 2  The respondents have in their counter affidavit stated that this representation was not addressed to the Central Government
It is however admitted that the Jailor had on the request of the detenu forwarded the same to the Central Government on July 18 1980
No counter affidavit has been filed on behalf of the Central Government showing that this representation was considered and disposed of by it
In matters touching the personal liberty of a person preventively detained the constitutional imperative embodied in Article 225 is that any representation made by him should be dealt with utmost expedition
This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government
Contention 3  It is an admitted position that the detenu does not know English
The grounds of detention which were served on the detenu have been drawn up in English
It is true that Shri C L Antali Police Inspector who served the grounds of detention on the detenu has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu
But that is not a sufficient compliance with the mandate of Article 225 of the Constitution which requires that the grounds of detention must be communicated to the detenu
Communicate is a strong word
It means that sufficient knowledge of the basic facts constituting the grounds  should be imparted effectively and fully to the detenu in writing in a language which he understands
The whole purpose of communicating the ground  to the detenu is to enable him to make a purposeful and effective representation
If the grounds  are only verbally 363 explained to the detenu and nothing in writing is left with him in a language which he understands then that purpose is not served and the constitutional mandate in Article 225 is infringed
If any authority is needed on this point which is so obvious from Article 225 reference may be made to the decisions of this Court in Harikishan vs State of Maharashtra and Haribandhu Dass
vs District Magistrate ibid
Thus all the three contentions canvassed by the counsel for the petitioner on merits were sound
The conclusion was therefore inescapable that due to the aforesaid contraventions of constitutional imperatives the continued detention of the detenu was illegal
It was for these reasons that we had allowed Writ Petition Crl No 4349 of 1980 by our order dated October 3 1980 and directed the release of the detenu
PBR Petition allowed


Summary:
After dismissal by this Court of the petition impugning the order of his detention under section 3 of the the petitioner filed the present petition urging additional grounds which were not urged in the previous petition
He alleged that i despite his request for the supply of all the documents relied upon by the detaining authority while passing the order of detention the respondent failed to do so ii that many of the documents were either incomplete or had been wholly withheld and in particular 236 documents out of 460 documents purported to have been supplied to him were not supplied iii that though his representation dated July 17 1980 for revocation of the detention order was forwarded by the jailer to the Central Government it had not been disposed of and iv that lastly serving the grounds of detention in English which is a language not known to him without supplying a translation in his mother tongue was a breach of the constitutional imperative embodied in article 225 and that for these reasons the order of detention should be held void
A preliminary objection was raised on behalf of the respondent State that the present petition was barred as constructive res judicata
Overruling the preliminary objection  HELD In the present petition fresh additional grounds had been taken by the detenu to challenge the legality of his continued detention
Therefore the subsequent writ petition is not barred as res judicata
359 B C 1
By a long line of decisions this Court has held 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 in applicable to illegal detentions and does not bar a subsequent petition for the writ of habeas corpus 353 under article 32 of the Constitution on fresh grounds which were not taken in the earlier petition for the same relief
359 A B Ghulam Sarwar vs Union of India  Ors
1967 2 SCR 271 Daryao vs State of Uttar Pradesh AIR 1961 SC
14571962 1 SCR 574 Niranjan Singh vs State of Madhya Pradesh  and Calcutta Gas Co Proprietary Ltd vs State of West Bengal AIR 1965 SC 596 referred to 2a
One of the constitutional imperatives embodied in Art 225 of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu as soon as practicable to enable him to make an effective representation
360 G In the instant case the materials and documents which were not supplied to the detenu were a part of the basic facts and materials which should have been supplied to him ordinarily within 5 days of the order of detention and for exceptional reasons to be recorded within 15 days of the commencement of the detention
The respondent did not state that the documents which were not supplied were not relevant to the case of detenu
362 C Smt
Icchu Devi Choraria vs Union of India  Ors  applied
b In the first petition no specific ground was taken by the detenu that documents covering 236 pages relied upon by the detaining authority were suppressed and not supplied to him
He had now stated that he had come to know about the non supply of these documents from the judgment of the Gujarat High Court which was subsequent to the dismissal of his earlier petition
This assertion has remained unchallenged
360 E F c In matters touching the personal liberty of a person preventively detained the constitutional imperative in article 225 is that any representation made by the detenu should be dealt with the utmost expedition which in this is has been honoured in breach
362 E d Merely explaining the grounds of detention in the mother tongue of the detenu would not be sufficient compliance with the mandate of article 225 which requires that the grounds of detention must be communicated to the detenu
Communicate is a strong word
It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language understood by him
Its whole purpose is to enable him to make a purposeful and effective representation
If the grounds are only verbally explained without giving them to him in writing in a language that he understands its purpose is not served and the constitutional mandate is infringed
362G H Haribandhu Das vs District Magistrate Cuttack  Anr  Smt Razia Umar Bakshi vs Union of India and Harikisan vs State of Maharashtra 1962 Supp 2 SCR 918 followed