IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.1.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Habeas Corpus Petition No.1841 of 2008 Mohan @ Mohan Reddy ... Petitioner Vs. 1.The Commissioner of Police, Egmore, Chennai-8. 2.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-9. ... Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, to call for the records on the file of the 1st respondent in connection with Memo No.144/BDFGISSV/2008, dated 11.6.2008 and quash the same and produce the detenu Mohan @ Mohan Reddy, son of Subba Reddy, before this Court and to set him at liberty, who is now confined at Central Prison No.II, Puzhal, Chennai. For petitioner : Mr.M.R.Ravichandran For respondents : Mr.N.R.Elango, Addl.P.P. O R D E R ELIPE DHARMA RAO, J. The petitioner is the detenu. He filed this petition, challenging the detention order passed against him, branding him as an 'Immoral Traffic Offender' under 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). 2. Earlier, the very same detention order of the petitioner/detenu was challenged by his wife Smt.Jyothi, by filing Habeas Corpus Petition No.919 of 2008 and this Court, by an elaborate and considered order dated 15.10.2008, has dismissed the same. It has been submitted before https://hcservices.ecourts.gov.in/hcservices/ us that no appeal has been filed as against the said order of this Court and thus it has reached its finality. In this backdrop, the petitioner/detenu hinmself has come forward to file this petition, challenging the order of detention passed against him. 3. A very strong objection has been raised on the part of the learned Additional Public Prosecutor appearing for the State, regarding the very maintainability of this petition. It has also been pointed out that the grounds taken in this petition are identical to the ones taken in the earlier Habeas Corpus Petition and they were very well available to the petitioner to be raised when the earlier Habeas Corpus Petition was filed. 4. On the contrary, on the part of the petitioner, the learned counsel for the petitioner would argue that the principle of res judicata or constructive res judicata has no role to play in criminal matters and further, the petitioner is filing this petition on fresh grounds to be decided by this Court and therefore, this petition is very well maintainable. 5. The question relating to res judicata in habeas corpus petition was considered by the Honourable Apex Court in several cases. In T.P.MOIDEEN KOYA vs. GOVERNMENT OF KERALA [(2004) 8 SCC 106], a Three Judge Bench of the Honourable Apex was dealing with a matter wherein after the habeas corpus petition under Article 226, seeking quashing of the detention order passed against the petitioner and for setting him at liberty had been dismissed by the High Court, the matter was carried in appeal to the Supreme Court by filing a petition under Article 136. After leave was granted, the appeal was dismissed by a detailed judgment, wherein all the contentions raised laying challenge to the detention order and also to the continued detention of the petitioner had been considered. In the said case, considering all the facts and circumstances and after referring to the Constitution Bench judgment of the Apex Court in GHULAM SARWAR vs. UNION OF INDIA [AIR 1967 SC 1335], the Honourable Apex Court has held as follows: "The bar of res judicata or constructive res judicata would apply even to a petition under Article 32 of the Constitution where a similar petition seeking the same relief had been filed under Article 226 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 corpus under Article 226 before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits or by a non-speaking order) and the said decision is not challenged by preferring a https://hcservices.ecourts.gov.in/hcservices/ special leave petition under Article 136 and is allowed to become final, it would still be open to him to file an independent petition under Article 32 seeking a writ of habeas corpus." "It is well settled that 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 the 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 the Supreme 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 the Supreme Court by way of a petition under Article 136." "While hearing a special leave petition against the judgment of the High Court dismissing a habeas corpus petition wherein a prayer has been made to set a detenu at liberty, the Court would normally examine the same grounds, namely, whether the detention order is in conformity with Article 22(5) of the Constitution and the provisions of the enactment under which the detention order has been passed, that the procedural safeguards have been observed and also whether the continued detention of the detenu has not been rendered invalid on account of any breach of the duty cast upon the authorities. A decision rendered by the Supreme Court in proceedings under Article 136 which has attained finality, would bind the parties and the same issue cannot be reagitated or reopened in a subsequent petition under Article 32." "It is however clarified that the subsequent petition under Article 32 seeking a writ of habeas corpus for setting at liberty a person who has been detained under any of the detention laws would be maintainable if the circumstances have changed. It would also be maintainable on the grounds which were not available when the earlier petition was decided. " (emphasis supplied) 6. The position discussed and decided by the Honourable Apex Court in the above judgment is similar to the one on hand. In the case on hand also, this Court has dismissed the earlier Habeas Corpus Petition filed on behalf of the detenu by a detailed order and the same has reached its finality, since not assailed. Thereafter, the detenu himself has come forward to file this petition, contending that the principle of res judicata has no application to his case. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned Additional Public Prosecutor has relied on the judgment of the Honourable Apex Court in SRIKANT vs. DISTRICT MAGISTRATE, BIJAPUR AND OTHERS [(2007) 1 SCC (Cri) 385], wherein, after discussing various case laws on the subject, including the above Three Judge Bench Judgment, it has been held: "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. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds." 8. On an analogous reading of the entire case law on the subject, the following legal proposition could be culled out: The principle 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. But, when once the habeas corpus petition filed either by the detenu or on his behalf by somebody, was dismissed by the High Court on merits and the same has not been assailed in appeal and thus it has reached its finality, for filing the second habeas corpus petition, the petitioner must show that there exist new or fresh grounds to be considered by the High Court, which were not available to him while filing or deciding the earlier habeas corpus petition and that continuance of his detention is no more required in view of the changed circumstances. The fact, as to whether the grounds raised in the second habeas corpus petition are new or fresh ones, has to be decided by the court dealing with the application and no hard-and-fast rule can be laid down in that regard. But, it must be kept in mind that it is the substance and not the form which is relevant and if some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds. In the absence of any fresh or new grounds and if the petitioner fails to prove that continuance of his detention is no more required in view of the changed circumstances, it is not open to the High Court, sitting under Article 226 of the Constitution of India, to exercise a power of review or some kind of an appellate jurisdiction over the decision already rendered by it earlier regarding the very same detention order. 9. In the light of the above legal position, now we have to see whether this petition has been filed on new or fresh grounds and whether the petitioner has brought forth any changed circumstances, so as to say that continuance of his detention is no more required, in view of such changed circumstances. Of course, it must be kept in mind, while https://hcservices.ecourts.gov.in/hcservices/ deciding the petition as to whether the grounds now raised are fresh or new ones and no surgical changes are made with the context and that the substance and essence not remained the same. 10. In the grounds, the petitioner has submitted that his wife has sent representation to the 1st respondent on 10.6.2008 and the 1st respondent received the representation on 13.6.2008 within 12 days from the date of detention order and before the approval of the Government, but the Detaining Authority has not considered the representation sent by his wife. 11. In the earlier petition filed by the wife of the detenu in H.C.P.No.919 of 2008, the petitioner's wife has raised Ground No.6, wherein she has stated that she sent the representation on 10.6.2008 to the 1st respondent by RPAD and it has been mentioned therein that the detenu knows only Telugu and no confession statement was given by her husband and the same was not taken into consideration by the detaining authority. Thus, this being the ground raised with some surgical changes made with the context and substance and essence remaining the same, it cannot be said that challenge is on new or fresh ground, as has been held by the Honourable Apex Court in Srikant's case (cited supra). 12. On the part of the petitioner, it has been urged that in the Tamil Grounds of detention, it has been stated that he was produced before the VII Metropolitan Magistrate Court, but, in the remand order, it has been mentioned that he was produced before the VI Metropolitan Magistrate Court and therefore, it proves that the detaining authority, without going through the documents available to him has passed the detention order. The above said contradiction cannot be construed as a contradiction at all, since appears to be only a typographical error, without having the capacity to tilt the balance in favour of the petitioner/detenu. 13. The other grounds raised by the petitioner are that the copy of the complaint lodged by the Sub Inspector of Police was not furnished to him; that there is a translation variation between the grounds of detention and the Tamil detention at page No.5; that in the ground case it is stated that two girls were rescued from the detenu, namely Padma and Jothi, which is an utter false and that the said Padma is the wife of A.2 in the ground case and a perusal of the confession statement of A.2 and the statement of Padma will reveal the truth and the said Padma filed an affidavit before this Court that she is not rescued by the Sponsoring Authority, but the said facts were suppressed by the sponsoring authority; that the bail petition of Bhaskar from English to Tamil version was not translated properly and that there is a translation mistake in the remand order at page No.269 and that there is a variation of the time of arrest, confession statement and arrest report. https://hcservices.ecourts.gov.in/hcservices/ 14. All these grounds are very well available to the petitioner when his wife has filed the earlier Habeas Corpus Petition. Further more, in the earlier round of litigation, it has been stiffly contended on the part of the detenu that he has been furnished with the documents only in Tamil, with which he has no acquaintance and this Court, on perusal of the entire materials on record and considering the fact that he is a resident of Chennai for the last 23 long years and that he is facing a criminal case in Cr.No.235 of 203 before the Court of learned IV Metropolitan Magistrate, Saidapet, Chennai, wherein all the material documents are said to have been filed only in Tamil and there is no request on behalf of the detenu before the said Magistrate or before any other authority requesting to furnish him the documents in that case in Telugu, has rejected the said plea. In the present petition, a plea has been taken that there are mistakes in the translation from English to Tamil, which substantiates our finding, rendered in the earlier petition, that the detenu is very well acquainted with Tamil. 15. No reason, whatsoever, has been offered on the part of the detenu, as to why the grounds, which have been brought before us now in this petition, were not raised earlier, though they were very well available to him. On a careful perusal of the entire materials placed on record and also the so-called new grounds raised by the petitioner, we do not consider them as the new ones since they are only the grounds with some surgical changes, with the context, substance and essence remaining the same with that of the grounds raised earlier. No changed circumstances, whatsoever, to held that the detention of the petitioner is no more required, have also been brought to our notice. In the absence of any new or fresh grounds and in view of the failure of the petitioner in establishing any changed circumstances that his continued detention is no more required, this Court, while sitting under Article 226 of the Constitution of India, cannot exercise the power of review or any kind of an appellate jurisdiction over the decision already rendered by it regarding the very same detention order of the petitioner. Therefore, for all the above reasons and discussions, this Habeas Corpus Petition is dismissed as not maintainable, since no new or fresh grounds, which were not available at the time of filing the earlier habeas corpus petition in H.C.P.No.919 of 2008, have been raised and it has also not been proved by the petitioner that continuance of his detention is no more required in view of any changed circumstances. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Rao https://hcservices.ecourts.gov.in/hcservices/ To 1.The Commissioner of Police, Egmore, Chennai-8. 2.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-9. 3. The Superintendent, Central Prison, Puzhal, Chennai. 4. The Public Prosecutor, Madras High Court, Madras. 5. The Joint Secretary to Government, Public (Law & Order) Department, Madras-9. + 1 CC to Mr.R.Ravichandran, Advocate SR.NO.2964 H.C.P.No.1841 of 2008 KM(CO) EM/2.2.09 https://hcservices.ecourts.gov.in/hcservices/