S ALI ENAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ application has been filed by the petitioner for issuance of a writ of habeas corpus to declare the order of detention of the petitioner passed under Section 12 (2) of the Bihar Control of Crimes Act, 1991 (hereinafter to be referred to as 'the Act'), as illegal and for the release of the petitioner forthwith. In pursuance with the order dated 11-12-1989 (Annexure-1) passed by the respondent, District Magistrate, Darbhanga, under Section 12 (2) of the Act, the petitioner was arrested on 3-2-1990. On that very day he was served with the grounds of detention which have been filed as Annexure-'1/1' to the writ application. The detention was approved by the Government on 12-12-1989. The Advisory Board also approved the validity of the detention. The petitioner had filed a representation before the Government on 20-2-1990 which he has also been rejected on 30-3-1990 Counter-Affidavits have been filed on behalf of the District Magistrate, the detaining authority, as well as, the State Government.

(2.) It appears from the records of the case that before filing the present writ application, the petitioner had filed two more writ applications, namely, Cr. W. J. C. No. 39 of 1990 and Cr. W. J. C. No. 61 of 1990. Cr. W. J. C. No. 39 of 1990 was permitted to the withdrawn since the petitioner wanted to take recourse under Section 24 of the Act and the second writ application stood dismissed for default. On this premise a preliminary objection has been raised on behalf of the State that the present writ application is not maintainable as it is barred by the principles of res judicata. The objection of the State is not sustainable. Admittedly, this Court had not on any earlier occasion considered the validity of the impugned detention order on merit. Neither the withdrawal of a Habeas Corpus petition nor its dismissal for default can tantamount to res judirata, constructive or otherwise so as to bar the entertainment of the present writ application.

(3.) In the case of Lala Bhai Jogi Bhai Patel v. Union of India and others, reported in AIR 1981 SC 728, it has been held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely in applicable to illegal detention and does not bar subsequent petition for a writ of Habeas Corpus on fresh grounds which were not taken or decided in the earlier petition for the same relief.