NOOR MAHAMMAD, SK. Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) This is an application of habeas corpus by the detenu Janab Md. Obedur Rahman who was detained under the MISA. This application has a chequered career. As stated in para. 12 of the petition, after the detention of the Petitioner an application was made to this Court and a Rule nisi in Criminal Misc. Case No. 1032 of 1972 was obtained. But on July 25, 1972, the learned lawyer for the Petitioner prayed for leave to withdraw the said application with liberty to move afresh. Thereafter, another application for habeas corpus was moved by the detenu and a Rule was issued being Criminal Misc. Case No. 1713 of 1972, but the said Rule was discharged by S.K. Bhattacharyya J. and Sudhamay Basu J., our learned brothers, on December 22, 1972, when their Lordships considered the case on merit and discharged the Rule. Thereafter the present Rule was obtained by the detenu for his self -same detention before Borooah and Chanda JJ. On February 27, 1973, and the said Bench was pleased to release the detenu on bail on March 1, 1973.

(2.) On the ground of maintainability of this application Mr. Kundu for the Petitioner drew our attention to a judgment passed by our learned brothers Anil K. Sen and N.C. Mukherji JJ. in Durjadhan Patra v/s. The District Magistrate, Howrah and Anr. Unreported Criminal Misc. Case No. 1036 of 1972 decided on August 24, 1972 on the ground of illegality.

(3.) Mr. Paul appearing for the State submits that as decided by the Supreme Court in Ghulam Sarwar v/s. Union of India and Ors. : (1967) 2 S.C.R. 271 though strictly the principle of res judicata may not apply in this habeas corpus matters but nonetheless a Division Bench should not set aside the order passed by another Division Bench of the same High Court except in the case of lawless order or in the case when fresh facts are discovered later on.