On behalf of the respondents, a preliminary objection was raised that the decision of Khanna, J. of the Punjab High Court operated as res judicata and barred the maintainability of the subsequent petition under Article 32.
He was on July 30, 1980, informed that he may, if so advised, file a fresh petition on those additional grounds.
The petition was rejected by the High Court.
and the judgment dated June 23, 1980 in Bakshis case.
In re Hostings No.
That petition was dismissed by this Court by an order dated May 9, 1980, but the reasons for that order were announced later on August 4, 1980.
Harman, J. pointed out that since the Judicature Act had abolished the three independent companyrts, namely, the Court of Exchequer, the Kings Bench Division, and the Common Pleas, and had companystituted one High Court, when an application for writ of habeas companypus has been disposed of by one Divisional Court, numbersecond application on the same ground lies to another Divisional Court of the High Court.
The petitioner filed a writ petition under Article 226 of the Constitution, challenging his detention and praying for a writ of habeas companypus.
In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt.
However, a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and also where for some exceptional reason a ground has been omitted in an earlier petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice.
The petition was dismissed by Khanna, J., on merits.
This position was given statutory recognition in the Administration of Justice Act, 1960.
Before the learned Judge, the companystitutional validity of Section 3 2 g of the Act was number canvassed.
In a Full Bench decision of the Punjab High Court, which purports to follow these English decisions and two decisions of this Court in Daryao v. State of U.P. ibid and Calcutta Gas Co. Proprietary Ltd. v. State of West Bengal, it was held as follows No second petition for writ of habeas companypus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court.
Before his term of imprisonment expired, the petitioner filed a writ of habeas companypus in the Circuit Bench of the Punjab High Court, challenging his detention.
It is stressed that a preventive detention illegally companytinued is a companytinuous wrong and furnishes a companytinuous cause of action to the detenu to challenge the same on fresh grounds.
On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel was served with an order of detention, dated January 30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of Gujarat Home Department under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for short, the COFEPOSA .
L. Nain, Sushil Kumar and M. N. Shroff for the Respondents.
449 of 1980 in this Court.
We are number giving the reasons in support of that order.
Under Article 32 of the Constitution.
ORIGINAL JURISDICTION Writ Petition No.
The petitioner challenged the order of his detention by Writ Petition No.
After the Judicature Act, 1873, this right was lost, and numbersecond application for habeas companypus can be brought in the same companyrt, except on fresh evidence.
In England, before the Judicature Act, 1873, an applicant for habeas companypus had a right to go from companyrt to companyrt, but number from one Bench of a companyrt to another Bench of the same Court.
The learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court companyld number question its validity in the absence of any mala fides.
4349 of 1980.
The Judgment of the Court was delivered by SARKARIA, J. By our order dated October 3, 1980, we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu.
The grounds of detention were also served on him on the same day.
M s. Ram Jethmalani, Anil Dewan, Harjinder Singh and S. Sajanwala, for the Petitioner.
After the dismissal of his petition, he on July 21, 1980, filed additional grounds.
The petitioner came to know about the number supply of these documents from the companyy 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 petitioner.
A reply to these allegations is to be found in paragraphs 20 and 21 of the companynter filed on behalf of the respondents, wherein it is admitted that the jailor has sent the representation at the detenus request to the Central Govt.
In support of this companytention, reference has been made to Haribandhu Das District Magistrate, Cuttack Anr.
Thereafter, Ghulam Sarwar filed a petition under Article 32 of the Constitution for issue of a writ of habeas companypus against the respondent on the ground that the provisions of the Act were invalid.
That is how this subsequent petition came to be filed on additional grounds which were number urged in the previous Writ Petition 449 of 1980.
The grounds served on the detenu were in English.
