Case: Nazul Ali Molla & Others Vs. State of West Bengal

V. Bhargava, J.1. These are two petitions under Article 32 of the Constitution by two persons who have been detained under Section 3(2) of the Preventive Detention Act. When these petitions came up for hearing, a preliminary objection was raised on behalf of the respondent that both these petitioners had moved the High Court of Calcutta under Article 226 of the Constitution for their relief and in those petitions the rules issued were discharged on July 25, 1969. It was urged that those orders of the High Court not having been brought up in appeal in this court, became final and that these petitions should be held to be barred by the principle of res judicata. for the respondent argued that this court has held in Daryao and Others v. State of U.P. and Others that if a petition under Article 226 of the Constitution is presented in the High Court and is dismissed on merits and not on the grounds of limitation or without a speaking order and no appeal is brought up against the order of the High Court, a petition on similar grounds in the Supreme Court should be held to be barred by res judicata. That case does not, however, apply to the case before us because the court in that case very clearly indicated that there can be not analogy between a petition for habeas corpus and petitions filed either under Article 226 of Article 32 of the Constitution which relate to writs other than a writ of habeas corpus. Learned counsel for the respondent also relied on the decisions in England in Re Hastings (No. 2) and Re Hastings (No. 3). But these cases instead of supporting his proposition, show that even in England until the Habeas Corpus Act, 1960 was passed, the principle recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the first case, there was a mention of different and had to be treated as one single court, so that the various courts known by different designations were really divisions of one single court. In this court, there is no decision that a petition under Article 32 of the Constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decide and no appeal is brought up to this court against that decision. We are, therefore, not inclined to accept the point put forward by counsel. But in this case, this point need not detain us, because the material supplied on the records of these two petitions on behalf of the respondent is totally insufficient to invoke the principle of res judicata even if such a principle could be applied. The pleadings in the two petitions before the High Court have not been produced before this court. No even the judgments passed have been brought before us. Whether the rules were discharged after all the grounds now being taken in these petitions did or did not exist when those petitions were presented, and whether they were considered by the High Court.

Decision reasoning: 1[ds]That case does not, however, apply to the case before us because the court in that case very clearly indicated that there can be not analogy between a petition for habeas corpus and petitions filed either under Article 226 of Article 32 of the Constitution which relate to writs other than a writ of habeasthese cases instead of supporting his proposition, show that even in England until the Habeas Corpus Act, 1960 was passed, the principle recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the first case, there was a mention of different and had to be treated as one single court, so that the various courts known by different designations were really divisions of one single court. In this court, there is no decision that a petition under Article 32 of the Constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under Article 226 of the Constitution before a High Court has been decide and no appeal is brought up to this court against that decision. We are, therefore, not inclined to accept the point put forward by counsel. But in this case, this point need not detain us, because the material supplied on the records of these two petitions on behalf of the respondent is totally insufficient to invoke the principle of res judicata even if such a principle could be applied. The pleadings in the two petitions before the High Court have not been produced before this court. No even the judgments passed have been brought before us. Whether the rules were discharged after all the grounds now being taken in these petitions did or did not exist when those petitions were presented, and whether they were considered by the High Court.On merits, it is very clear that the detention of both the petitioners has become illegal. Both these petitioners sent their representations to the Government on or about June 14, 1969 and those representations were considered and decided by the Government on the expiry of two months on August 13, 1969, after the Government had already confirmed the order of detention on receipt of the report of the Advisory Board. No satisfactory explanation is given for the delay. It is stated that the representations were sent for report to the District Magistrate who did not recommend release and thereupon the representations were considered and rejected. This does not explain the delay of two months.