Tmt.Vimala @ ShilpaNow detenu,Special Prison for Women,Puzhal, Chennai-66 v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.6.2009CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOHabeas Corpus Petition No.244 of 2009Tmt.Vimala @ ShilpaNow detenu,Special Prison for Women,Puzhal, Chennai-66. .. Petitionervs.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. .. RespondentsHabeas Corpus Petition under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Habeas Corpus, to direct therespondents 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 thesecond respondent on 3.10.2008 in Memo No.341/BDFGISSV/2008, beforethis Court, call for the records, set aside the order and set thedetenue at liberty forthwith.For petitioner : M/s.Swamidoss ManokaranFor respondents: Mr.V.R.Balasubramanian, Addl.P.P. https://hcservices.ecourts.gov.in/hcservices/ ORDERS.J.MUKHOPADHAYA,JThis Habeas Corpus Petition has been preferred by the petitioneragainst the order of detention in Memo No.341/BDFGISSV/2008, dated3.10.2008 passed under Section 3(1) of the Tamil Nadu Prevention ofDangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). Thepetitioner has been detained as an Immoral Traffic Offender.2. Learned counsel appearing for the petitioner submitted thatthe representation filed by the petitioner on 3.2.2009 was notproperly and expeditiously considered and the request for documents,which were directed to be given to the detenu by the first respondentpursuant to the earlier representation dated 25.10.2008, were notfurnished to the detenu so far.3. Learned Additional Public Prosecutor appearing for therespondents opposed the petition on the ground that the presentsecond Habeas Corpus Petition is not maintainable. In reply, it wassubmitted by the learned counsel for the petitioner that theprinciple of constructive res-judicata would not be applicable in apetition for Habeas Corpus. Reliance was placed on one or otherdecision of this Court and the Supreme Court.4. We have heard the learned counsel appearing for the partiesand perused the records and the decisions of this Court and theSupreme Court.5. The question of maintainability of second Habeas CorpusPetition fell for consideration before Courts from time to time. Inthe case of "P.Sugunan vs. The Commissioner of Police, Chennai andothers" reported in 1999 (1) MWN (Cr.) 10, a Division Bench of thisCourt held that the doctrine of constructive res-judicata does notbar a subsequent petition on fresh grounds, if not taken in theearlier petition for the same relief and the petitioner can agitate afresh ground in the second petition, though available to him on theearlier 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 thedismissal of the earlier Habeas Corpus Petition does not operate asres-judicata and does not bar the petitioner under Article 32 of theConstitution of India asking for issuance of a Writ of Habeas Corpuson fresh grounds, and the petitioner would not have right to move theCourt more than once on the same facts and grounds. The Supreme Courtheld 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 thatwhether any new ground has been taken, has to be decided by the Courtdealing with the application and no hard and fast rule can be laiddown in that regard. If some surgical changes are made with thecontext, substance and essence remaining the same, it cannot be saidthat the challenge is on new or fresh grounds.8. In the case of "S.Khader Mohideen vs. The State of TamilNadu, rep. by the Secretary to the Government, Public (SC)Department, Fort St.George, Chennai-600 009 and 2 others" inH.C.P.No.663 of 2006, dated 30.11.2006, a Division Bench of thisCourt, by its unreported judgment, observed that the second HabeasCorpus Petition before the same very Court on the self-same grounds,would not be maintainable, as the subsequent Bench deciding thematter cannot go behind the earlier order and come to any differentconclusion, as any such exercise would be against the principle ofjudicial comity and propriety. The principle of res-judicata may notbe applicable to disposal of Habeas Corpus Petition or for thatmatter, bail applications, but in the absence of any new developmentor 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 isthat the earlier representation, dated 3.2.2009 has not been properlyand expeditiously considered and the request for the documents weredirected to be given by the first respondent, but the same had notbeen furnished. 10. From the order dated 21.1.2009 in H.C.P.No.1742 of 2008which was filed by the petitioner earlier, it is apparent that thepetitioner had taken a specific ground that the documents called forby the petitioner, had not been furnished and there is a delay inconsidering the representation. The Court has not accepted such aplea and held that there is no delay in considering therepresentation or serving the copy of the order of rejection of therepresentation. A specific finding has been given that there is noviolation 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 thecopies of the documents which were relied upon by the detainingauthority, were furnished to the detenu as requested by her in therepresentation dated 25.10.2008. The documents like pocket note ofInspector and case diary were not relied upon by the detainingauthority in passing the order and hence, such request was notaccepted.11. In view of the fact that now there is no new development offacts brought to the notice of the Court and the grounds takenearlier 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 veryfacts and grounds, is not maintainable. Further, in view of theearlier order dated 21.1.2009 in H.C.P.No.1742 of 2008, we also findno merits in this petition to allow the case. The present HabeasCorpus Petition is also accordingly dismissed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar csTo1. 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 2009GGK(CO)EM/8.7.09