LOGA Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) THE wife of the detenu Thiru. Mari is the petitioner herein and this habeas corpus petition, assailing the order of detention dated 16.7.2009 passed by the second respondent in B.D.F.G.I.S.S.V. No. 42 of 2009, is the second one filed by the petitioner.

(2.) IN order to arrive at subjective satisfaction that the detenu Thiru.Mari was to be termed a "Sand Offender" as contemplated under Section 2(gg) of Tamil Nadu Act 14 of 1982, the Detaining Authority viz., the second respondent, noticed as many as four adverse cases, in (1) Crime No. 134 of 2008, on the file of K.K. Chatram Police Station, for alleged offences under Sections 379, 430 IPC and Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957; (2) Crime No. 121 of 2009, on the file of K.K. Chatram Police Station, for alleged offences under Sections 353,506(ii), 379,430 IPC read with Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957; (3) Crime No. 229 of 2009, on the file of K.K. Chatram Police Station, for alleged offences under Sections 353, 506(ii), 379, 430 IPC r/w Section 21(1 )(a) of the Mines and Minerals (Regulation and Development) Act, 1957 and (4) Crime No. 253 of 2009, on the file of K.K.Chatram Police Station, for alleged offences under Sections 353, 506(H), 379, 430 IPC read with Section 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 and also the ground case registered in Crime No. 255 of 2009, on the file of K.K. Chatram Police Station, for alleged offences under Sections 379,430 IPC and Section 4(1), 21(1)(a) of the Mines and Minerals (Regulation and Development) Act, 1957 read with 294(b) and 307 IPC. The said order of detention is now assailed by the wife of the petitioner seeking an Order quashing the detention order and directing his release in this second habeas corpus petition.

(3.) AS it is the second petition, the sustainability of the same, in the light of the fact that the earlier petition was dismissed on merits, arises as an important question. Ofcourse it is conceded that the principle of constructive res judicata shall not be applicable to habeas corpus petition seeking the enforcement of right of personal liberty guaranteed under Article 21 of the Constitution of India. However it is contended by the learned Additional Public Prosecutor on behalf of the respondents that though strictly speaking the principle of constructive res judicata shall not be applicable to habeas corpus petitions seeking the enforcement of personal liberty guaranteed as a fundamental right by the Constitution of India, judicial etiquette shall prevent a second petition being sustained on the same grounds which were raised/considered and decided against the petitioner. It is the further contention of the learned Additional Public Prosecutor that a Court dealing with such a question might have arrived at a wrong conclusion, but the same does not mean that the very same question can be re-agitated in a second petition and that the remedy in such cases available to the aggrieved party shall be to approach the superior Forum.