IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.6.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE RAJA ELANGO Habeas Corpus Petition No.244 of 2009 Tmt.Vimala @ Shilpa Now detenu, Special Prison for Women, Puzhal, Chennai-66. .. Petitioner vs. 1. State rep. by Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. .. Respondents Habeas Corpus Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Habeas Corpus, to direct the respondents to produce the detenue Vimala @ Shilpa, W/o Adhisesh, aged 40 years, who is now detained in Special Prison for Women, Puzhal, Chennai-66, in pursuance of the detention order passed by the second respondent on 3.10.2008 in Memo No.341/BDFGISSV/2008, before this Court, call for the records, set aside the order and set the detenue at liberty forthwith. For petitioner : M/s.Swamidoss Manokaran For respondents: Mr.V.R.Balasubramanian, Addl.P.P. https://hcservices.ecourts.gov.in/hcservices/ ORDER S.J.MUKHOPADHAYA,J This Habeas Corpus Petition has been preferred by the petitioner against the order of detention in Memo No.341/BDFGISSV/2008, dated 3.10.2008 passed under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). The petitioner has been detained as an Immoral Traffic Offender. 2. Learned counsel appearing for the petitioner submitted that the representation filed by the petitioner on 3.2.2009 was not properly and expeditiously considered and the request for documents, which were directed to be given to the detenu by the first respondent pursuant to the earlier representation dated 25.10.2008, were not furnished to the detenu so far. 3. Learned Additional Public Prosecutor appearing for the respondents opposed the petition on the ground that the present second Habeas Corpus Petition is not maintainable. In reply, it was submitted by the learned counsel for the petitioner that the principle of constructive res-judicata would not be applicable in a petition for Habeas Corpus. Reliance was placed on one or other decision of this Court and the Supreme Court. 4. We have heard the learned counsel appearing for the parties and perused the records and the decisions of this Court and the Supreme Court. 5. The question of maintainability of second Habeas Corpus Petition fell for consideration before Courts from time to time. In the case of "P.Sugunan vs. The Commissioner of Police, Chennai and others" reported in 1999 (1) MWN (Cr.) 10, a Division Bench of this Court held that the doctrine of constructive res-judicata does not bar a subsequent petition on fresh grounds, if not taken in the earlier petition for the same relief and the petitioner can agitate a fresh ground in the second petition, though available to him on the earlier occasion, but not taken. 6. In the case of "Lallubhai Jogibhai Patel vs. Union of India" reported in 1981 SCC (Cri) 463, the Supreme Court held that the dismissal of the earlier Habeas Corpus Petition does not operate as res-judicata and does not bar the petitioner under Article 32 of the Constitution of India asking for issuance of a Writ of Habeas Corpus on fresh grounds, and the petitioner would not have right to move the Court more than once on the same facts and grounds. The Supreme Court held that the subsequent petition on fresh grounds, is not barred. https://hcservices.ecourts.gov.in/hcservices/ 7. In the case of "Srikant vs. District Magistrate, Bijapur" reported in 2007 (1) SCC (Cri) 385, the Supreme Court observed that whether any new ground has been taken, has to be decided by the Court dealing with the application and no hard and fast rule can be laid down in that regard. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that the challenge is on new or fresh grounds. 8. In the case of "S.Khader Mohideen vs. The State of Tamil Nadu, rep. by the Secretary to the Government, Public (SC) Department, Fort St.George, Chennai-600 009 and 2 others" in H.C.P.No.663 of 2006, dated 30.11.2006, a Division Bench of this Court, by its unreported judgment, observed that the second Habeas Corpus Petition before the same very Court on the self-same grounds, would not be maintainable, as the subsequent Bench deciding the matter cannot go behind the earlier order and come to any different conclusion, as any such exercise would be against the principle of judicial comity and propriety. The principle of res-judicata may not be applicable to disposal of Habeas Corpus Petition or for that matter, bail applications, but in the absence of any new development or ground, it would not be appropriate for a subsequent Bench to re- consider the very same aspects for coming to a different conclusion. 9. In the present case, the main plea taken by the petitioner is that the earlier representation, dated 3.2.2009 has not been properly and expeditiously considered and the request for the documents were directed to be given by the first respondent, but the same had not been furnished. 10. From the order dated 21.1.2009 in H.C.P.No.1742 of 2008 which was filed by the petitioner earlier, it is apparent that the petitioner had taken a specific ground that the documents called for by the petitioner, had not been furnished and there is a delay in considering the representation. The Court has not accepted such a plea and held that there is no delay in considering the representation or serving the copy of the order of rejection of the representation. A specific finding has been given that there is no violation of guidelines as laid down by the Apex Court in the case of "D.K.Basu vs. State of West Bengal" (1997 SCC (Cri) 92) and all the copies of the documents which were relied upon by the detaining authority, were furnished to the detenu as requested by her in the representation dated 25.10.2008. The documents like pocket note of Inspector and case diary were not relied upon by the detaining authority in passing the order and hence, such request was not accepted. 11. In view of the fact that now there is no new development of facts brought to the notice of the Court and the grounds taken earlier were agitated and not accepted by this Court, we are of the https://hcservices.ecourts.gov.in/hcservices/ view that the present second Habeas Corpus Petition on the same very facts and grounds, is not maintainable. Further, in view of the earlier order dated 21.1.2009 in H.C.P.No.1742 of 2008, we also find no merits in this petition to allow the case. The present Habeas Corpus Petition is also accordingly dismissed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar cs To 1. Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. 3. The Public Prosecutor, High Court, High Court, Madras. 4. The Superintendent, Special Prison for Women,Puzhal,Chennai. H.C.P.No.244 of 2009 GGK(CO) EM/8.7.09 https://hcservices.ecourts.gov.in/hcservices/