Mohan @ Mohan Reddy v. The Commissioner of Police, Egmore, Chennai-8

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.1.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHHabeas Corpus Petition No.1841 of 2008Mohan @ Mohan Reddy... PetitionerVs.1.The Commissioner of Police, Egmore, Chennai-8.2.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-9.... RespondentsHabeas Corpus Petition filed under Article 226 of the Constitutionof India, praying to issue a Writ of Habeas Corpus, to call for therecords on the file of the 1st respondent in connection with MemoNo.144/BDFGISSV/2008, dated 11.6.2008 and quash the same and produce thedetenu Mohan @ Mohan Reddy, son of Subba Reddy, before this Court and toset him at liberty, who is now confined at Central Prison No.II, Puzhal,Chennai.For petitioner: Mr.M.R.RavichandranFor 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, challengingthe detention order passed against him, branding him as an 'ImmoralTraffic Offender' under the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders, Goondas,Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and VideoPirates Act, 1982 (Tamil Nadu Act 14 of 1982).2. Earlier, the very same detention order of the petitioner/detenuwas challenged by his wife Smt.Jyothi, by filing Habeas Corpus PetitionNo.919 of 2008 and this Court, by an elaborate and considered orderdated 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 Courtand thus it has reached its finality. In this backdrop, thepetitioner/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 thelearned Additional Public Prosecutor appearing for the State, regardingthe very maintainability of this petition. It has also been pointedout that the grounds taken in this petition are identical to the onestaken in the earlier Habeas Corpus Petition and they were very wellavailable to the petitioner to be raised when the earlier Habeas CorpusPetition was filed. 4. On the contrary, on the part of the petitioner, the learnedcounsel for the petitioner would argue that the principle of resjudicata or constructive res judicata has no role to play in criminalmatters and further, the petitioner is filing this petition on freshgrounds to be decided by this Court and therefore, this petition is verywell maintainable.5. The question relating to res judicata in habeas corpus petitionwas considered by the Honourable Apex Court in several cases. InT.P.MOIDEEN KOYA vs. GOVERNMENT OF KERALA [(2004) 8 SCC 106], a ThreeJudge Bench of the Honourable Apex was dealing with a matter whereinafter the habeas corpus petition under Article 226, seeking quashing ofthe detention order passed against the petitioner and for setting him atliberty had been dismissed by the High Court, the matter was carried inappeal to the Supreme Court by filing a petition under Article 136.After leave was granted, the appeal was dismissed by a detailedjudgment, wherein all the contentions raised laying challenge to thedetention order and also to the continued detention of the petitionerhad been considered. In the said case, considering all the facts andcircumstances and after referring to the Constitution Bench judgment ofthe 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 judicatawould apply even to a petition under Article 32 of theConstitution where a similar petition seeking the same reliefhad been filed under Article 226 before the High Court and thedecision rendered against the petitioner therein has not beenchallenged by filing an appeal in the Supreme Court, and hasbeen allowed to become final. However, this principle, namely,the bar of res judicata or principles analogous thereto wouldnot apply to a writ of habeas corpus where the petitioner praysfor setting him at liberty. If a person under detention filesa writ of habeas corpus under Article 226 before the High Courtand the writ petition is dismissed (whether by a detailed orderafter considering the case on merits or by a non-speakingorder) 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 tobecome final, it would still be open to him to file anindependent petition under Article 32 seeking a writ of habeascorpus.""It is well settled that a decision pronounced by a court ofcompetent jurisdiction is binding between the parties unless itis modified or reversed by adopting a procedure prescribed bylaw. It is in the interest of the public at large thatfinality should attach to the binding decisions pronounced by acourt of competent jurisdiction and it is also in the publicinterest that individuals should not be vexed twice over withthe same kind of litigation. While hearing a petition underArticle 32 it is not permissible for the Supreme Court eitherto exercise a power of review or some kind of an appellatejurisdiction over a decision rendered in a matter which hascome to the Supreme Court by way of a petition under Article136.""While hearing a special leave petition against the judgment ofthe High Court dismissing a habeas corpus petition wherein aprayer has been made to set a detenu at liberty, the Courtwould normally examine the same grounds, namely, whether thedetention order is in conformity with Article 22(5) of theConstitution and the provisions of the enactment under whichthe detention order has been passed, that the proceduralsafeguards have been observed and also whether the continueddetention of the detenu has not been rendered invalid onaccount of any breach of the duty cast upon the authorities. Adecision rendered by the Supreme Court in proceedings underArticle 136 which has attained finality, would bind the partiesand the same issue cannot be reagitated or reopened in asubsequent petition under Article 32.""It is however clarified that the subsequent petition underArticle 32 seeking a writ of habeas corpus for setting atliberty a person who has been detained under any of thedetention laws would be maintainable if the circumstances havechanged. It would also be maintainable on the grounds whichwere not available when the earlier petition was decided." (emphasis supplied)6. The position discussed and decided by the Honourable Apex Courtin the above judgment is similar to the one on hand. In the case onhand also, this Court has dismissed the earlier Habeas Corpus Petitionfiled on behalf of the detenu by a detailed order and the same hasreached its finality, since not assailed. Thereafter, the detenuhimself has come forward to file this petition, contending that theprinciple of res judicata has no application to his case. https://hcservices.ecourts.gov.in/hcservices/

7. The learned Additional Public Prosecutor has relied on thejudgment of the Honourable Apex Court in SRIKANT vs. DISTRICTMAGISTRATE, BIJAPUR AND OTHERS [(2007) 1 SCC (Cri) 385], wherein, afterdiscussing various case laws on the subject, including the above ThreeJudge Bench Judgment, it has been held:"Whether any new ground has been taken, has to be decided bythe court dealing with the application and no hard-and-fastrule can be laid down in that regard. But one thing is clear,it is the substance and not the form which is relevant. Ifsome surgical changes are made with the context, substance andessence remaining the same, it cannot be said that challengeis 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 analogousthereto would not apply to a writ of habeas corpus where thepetitioner prays for setting him at liberty. But, when oncethe habeas corpus petition filed either by the detenu or on hisbehalf by somebody, was dismissed by the High Court on meritsand the same has not been assailed in appeal and thus it hasreached its finality, for filing the second habeas corpuspetition, the petitioner must show that there exist new orfresh grounds to be considered by the High Court, which werenot available to him while filing or deciding the earlierhabeas corpus petition and that continuance of his detention isno more required in view of the changed circumstances. Thefact, as to whether the grounds raised in the second habeascorpus petition are new or fresh ones, has to be decided by thecourt dealing with the application and no hard-and-fast rulecan be laid down in that regard. But, it must be kept in mindthat it is the substance and not the form which is relevant andif some surgical changes are made with the context, substanceand essence remaining the same, it cannot be said thatchallenge is on new or fresh grounds. In the absence of anyfresh or new grounds and if the petitioner fails to prove thatcontinuance of his detention is no more required in view of thechanged circumstances, it is not open to the High Court,sitting under Article 226 of the Constitution of India, toexercise a power of review or some kind of an appellatejurisdiction over the decision already rendered by it earlierregarding the very same detention order.9. In the light of the above legal position, now we have to seewhether this petition has been filed on new or fresh grounds and whetherthe petitioner has brought forth any changed circumstances, so as to saythat continuance of his detention is no more required, in view of suchchanged 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 ornew ones and no surgical changes are made with the context and that thesubstance and essence not remained the same.10. In the grounds, the petitioner has submitted that his wife hassent representation to the 1st respondent on 10.6.2008 and the 1strespondent received the representation on 13.6.2008 within 12 days fromthe date of detention order and before the approval of the Government,but the Detaining Authority has not considered the representation sentby his wife.11. In the earlier petition filed by the wife of the detenu inH.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 tothe 1st respondent by RPAD and it has been mentioned therein that thedetenu knows only Telugu and no confession statement was given by herhusband and the same was not taken into consideration by the detainingauthority. Thus, this being the ground raised with some surgicalchanges made with the context and substance and essence remaining thesame, it cannot be said that challenge is on new or fresh ground, as hasbeen 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 theTamil Grounds of detention, it has been stated that he was producedbefore the VII Metropolitan Magistrate Court, but, in the remand order,it has been mentioned that he was produced before the VI MetropolitanMagistrate Court and therefore, it proves that the detaining authority,without going through the documents available to him has passed thedetention order. The above said contradiction cannot be construed as acontradiction at all, since appears to be only a typographical error,without having the capacity to tilt the balance in favour of thepetitioner/detenu.13. The other grounds raised by the petitioner are that the copy ofthe complaint lodged by the Sub Inspector of Police was not furnished tohim; that there is a translation variation between the grounds ofdetention and the Tamil detention at page No.5; that in the ground caseit is stated that two girls were rescued from the detenu, namely Padmaand Jothi, which is an utter false and that the said Padma is the wifeof A.2 in the ground case and a perusal of the confession statement ofA.2 and the statement of Padma will reveal the truth and the said Padmafiled an affidavit before this Court that she is not rescued by theSponsoring Authority, but the said facts were suppressed by thesponsoring authority; that the bail petition of Bhaskar from English toTamil version was not translated properly and that there is atranslation mistake in the remand order at page No.269 and that there isa variation of the time of arrest, confession statement and arrestreport. https://hcservices.ecourts.gov.in/hcservices/

14. All these grounds are very well available to the petitioner whenhis wife has filed the earlier Habeas Corpus Petition. Further more, inthe earlier round of litigation, it has been stiffly contended on thepart of the detenu that he has been furnished with the documents only inTamil, with which he has no acquaintance and this Court, on perusal ofthe entire materials on record and considering the fact that he is aresident of Chennai for the last 23 long years and that he is facing acriminal case in Cr.No.235 of 203 before the Court of learned IVMetropolitan Magistrate, Saidapet, Chennai, wherein all the materialdocuments are said to have been filed only in Tamil and there is norequest on behalf of the detenu before the said Magistrate or before anyother authority requesting to furnish him the documents in that case inTelugu, has rejected the said plea. In the present petition, a pleahas been taken that there are mistakes in the translation from Englishto Tamil, which substantiates our finding, rendered in the earlierpetition, that the detenu is very well acquainted with Tamil. 15. No reason, whatsoever, has been offered on the part of thedetenu, as to why the grounds, which have been brought before us now inthis petition, were not raised earlier, though they were very wellavailable to him. On a careful perusal of the entire materials placedon 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 groundswith some surgical changes, with the context, substance and essenceremaining the same with that of the grounds raised earlier. No changedcircumstances, whatsoever, to held that the detention of the petitioneris no more required, have also been brought to our notice. In theabsence of any new or fresh grounds and in view of the failure of thepetitioner in establishing any changed circumstances that his continueddetention is no more required, this Court, while sitting under Article226 of the Constitution of India, cannot exercise the power of review orany kind of an appellate jurisdiction over the decision already renderedby it regarding the very same detention order of the petitioner.Therefore, for all the above reasons and discussions, this HabeasCorpus Petition is dismissed as not maintainable, since no new or freshgrounds, which were not available at the time of filing the earlierhabeas corpus petition in H.C.P.No.919 of 2008, have been raised and ithas also not been proved by the petitioner that continuance of hisdetention 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/ To1.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 2008KM(CO)EM/2.2.09