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TMI Blog1980 (12) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. The whole purpose of communicating the ’ground’ to the detenu is to enable him to make a purposeful and effective representation. If the ’grounds’ are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed - The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal. Appeal allowed. - W.P.(C) 4349 OF 1980 - - - Dated:- 15-12-1980 - RANJIT SINGH SARKARIA AND O. CHINNAPPA REDDY, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, counsel has tried to distinguish the decisions of this Court in Daryao v. State of Uttar Pradesh and Niranjan Singh v. State of Madhya Pradesh. The preliminary question, therefore, to be considered is, whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a ground which he "might and ought" to have taken in his earlier petition for the same relief. In England, before the Judicature Act, 1873, an applicant for habeas corpus had a right to go from court to court, but not from one Bench of a court to another Bench of the same Court. After the Judicature Act, 1873, this right was lost, and no second application for habeas corpus can be brought in the same court, except on fresh evidence. In re Hastings (No. 3) Lord Parker, C.J., after surveying the history of the right of habeas corpus, arrived at the conclusion that it was never the law that in term time, successive writs of habeas corpus lay from Judge to Judge. In re Hostings (No. 4). Harman, J. pointed out that since the Judicature Act had abolished the three independent courts, namely, the Court of Exchequer, the King s Bench Division, and the Common Pleas, and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. It was also noted that the liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. Though a right is given to the citizen to move this Court by a petition under Article 32 and to claim an appropriate writ against the unconstitutional infringement of his fundamental rights, yet, in dealing with an objection based on the principle of res judicata may even apply to a successive petition. The Court was careful enough to add: "We propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is a matter with which we are not concerned in the present proceedings". It may be noted that the petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e repeated applications for habeas corpus, and examining English and American decisions, the learned Chief Justice (Mr. Justice Subba Rao) summed up the position, thus: "But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a court other than the High Court, namely, this Court. The order of the High Court in the said writ is not res judicata as held by the English and the American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no reason why the principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only a part of the general principle of the law of res judicata, and if that be applied, the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court, the petitioner did not question the constitutional validity of the President s order made under Article 359 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by the respondents. The additional grounds which have been pressed into arguments by Shri Ram Jethmalani, are: (1) The respondents failed to supply despite the request of the detenu, all the documents which were relied upon by the detaining authority while passing the order of his detention, that the detaining authority purported to give him 460 documents, but later on, the detenu discovered that their number was less and many of them were either incomplete or had been wholly withheld; that in particular 236 documents covering 236 pages were not supplied. This is alleged in ground No. 13 of the present petition. In reply to this, in para 17 of the counteraffidavit filed on behalf of the respondents, it is admitted that all the documents had not been given to the detenu, and he had been supplied enough documents which were thought to be sufficient to enable him to make an effective representation. The petitioner came to know about the non-supply of these documents from the copy of the judgment, dated May 13, 1980, of the Gujarat High Court passed in the allied writ petitions filed on behalf of other detenus who were alleged to be the associates of the present petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in passing the order of detention must be supplied to the detenu, as soon as practicable, to enable him to make an effective representation. Recently, in Smt. Icchu Devi Choraria v. Union of India Ors., this Court reiterated the principle as follows: "One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention." The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. These are the two outside time limits provided by Section 3, sub-section (3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the case of the detenu. Contention (2) : The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government. Contention (3) : It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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