Andhra Pradesh High Court - Amravati

Sokkam Sreenivasulu vs The State Of Ap on 9 January, 2024

Author: U. Durga Prasad Rao

Bench: U. Durga Prasad Rao

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                W.P.No.27172 of 2023
Between:

SOKKAM SREENIVASULU, S/o. Pedda Pullaiah,
Aged 53 years, Occ Cultivation,
R/o D. No. 176, Peddamma Bazar,
Ahobilam, Allagadda Mandal, Nandyal District
                                                            .. Petitioner
And
The State of AP, Represented by its Chief Secretary,
Secretariat Buildings, Amaravathi at Velagapudi,
Guntur District
and three others.
                                                          .. Respondents

DATE OF JUDGMENT PRONOUNCED: 09.01.2024

SUBMITTED FOR APPROVAL:

   HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
   HON'BLE SMT JUSTICE KIRANMAYEE MANDAVA


1. Whether Reporters of Local newspapers               Yes/No
   may be allowed to see the Judgments?

2. Whether the copies of judgment may be               Yes/No
   marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to             Yes/No
   see the fair copy of the Judgment?

                                          _________________________
                                          U. DURGA PRASAD RAO, J


                                           _________________________
                                          KIRANMAYEE MANDAVA, J
                                          2




            *HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
                               AND
           HON'BLE SMT JUSTICE KIRANMAYEE MANDAVA

                           + W.P.No.27172 OF 2023

%09.01.2024

# SOKKAM SREENIVASULU, S/o. Pedda Pullaiah,
  Aged 53 years, Occ Cultivation,
  R/o D. No. 176, Peddamma Bazar,
  Ahobilam, Allagadda Mandal, Nandyal District
                                                                .. Petitioner

Vs.

$ The State of AP, Represented by its Chief Secretary,
  Secretariat Buildings, Amaravathi at Velagapudi,
  Guntur District and three others.
                                                              .. Respondents


<GIST:

>HEAD NOTE:

! Counsel for petitioner:      Sri D. Purna Chandra Reddy.

 Counsel for respondents: Special Government Pleader representing
                          learned Advocate General

? CASES REFERRED:
      1.   2016 SCC Online Hyd 718 = (2017) 1 ALD (Cri) 224
      2.   2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB
      3.   1981 (2) SCC 427
      4.   (2004) 8 SCC 106 = MANU/SC/0846/2004
      5.   (2007) 1 SCC 486
      6.   MANU/SC/8053/2006 = (2006) 3 SCC 321
                                         3




                                              [ 3456 ]
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
              (Special Original Jurisdiction)
         TUESDAY, THE NINTH DAY OF JANUARY
            TWO THOUSAND AND TWENTY FOUR
                        PRESENT

  THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

               WRIT PETITION NO: 27172 OF 2023
Between:

     1.    SOKKAM SREENIVASULU, S/o. Pedda Pullaiah, Aged 53
           years, Occ Cultivation, R/o D. No. 176, Peddamma Bazar,
           Ahobilam, Allagadda Mandal, Nandyal District
                                                       ...PETITIONER(S)
                                  AND

     1.    THE STATE OF AP, Represented by its Chief Secretary,
           Secretariat Buildings, Amaravathi at Velagapudi, Guntur
           District
     2.    The Collector AND District Magistrate, , Nandyal District.
     3.    The Superintendent of Police,, Nandyal District.
     4.    The Superintendent,, Central Prison, Kadapa.
                                                       ...RESPONDENTS
    This Court made the following

    ORDER:

(Per Hon'ble Sri Justice U. Durga Prasad Rao)

In this writ petition filed under Article 226 of the Constitution

of India, the petitioner challenges the detention of his son Vamsi

Krishna @ Sokkam Vamsi Krishna as per the order of detention in

RC.C1/226/M/2023, dated 15.02.2023 passed by 2nd respondent-

Collector & District Magistrate, Nandyal District and confirmed by

the 1st respondent as per G.O.Rt.No.698, General Administration

(Law and Order) Department, dated 14.04.2023 and prays to direct

the respondent authorities to set the detenue at liberty forthwith.

2. By the proceedings dated 15.02.2023, the 2nd respondent

passed the detention order under Section 3(1) and (2) of the Andhra

Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits,

Drug Offenders, Goondas, Immoral Traffic Offenders and Land

Grabbers Act, 1986 (1 of 1986) [for short, 'the Act 1 of 1986']

treating the detenue as 'Goonda' under Section 2(g) of the Act 1 of

1986 on the subjective satisfaction that the detenue is acting in a

manner prejudicial to the maintenance of public order since he has

been habitually involved in notorious criminal activities with other

associates. Following cases in which the detenue was involved were

taken as ground for ordering his detention.

     S.No.                  Cr. No. & Sec. of Law                    Date of offence
       1     Cr. No.29/2016 u/s 143, 353, 427, 506 r/w 34 IPC of    08.03.2016
             Allagadda Rural P.S.
      2      Cr. No.88/2018 u/s 332, 307 r/w 34 IPC of Allagadda    08.10.2018
             Rural P.S.
      3      Cr. No.75/2019 u/s 147, 148, 324, 332, 307, 188 r/w    11.04.2019
             149 IPC of Allagadda Rural P.S.
      4      Cr. No.61/2021 u/s 324, 506 r/w 34 IPC of Allagadda    15.03.2021
             Rural P.S.
      5      Cr. No.36/2022 u/s 447, 384, 427, 506, 120(b) r/w 34   16.02.2022
             IPC of Allagadda Town P.S.
      6      Cr. No.227/2022 u/s 147, 148, 324, 307, 120(b) r/w     16.12.2022
             149 IPC and Sec. 3(2)(v) of the SC/ST POA Act of
             Allagadda Town PS

In the grounds of detention, it is stated that the detenue was

habitually committing offences under Chapters XVI, XVII and XXII

IPC and he is a dangerous and notorious criminal having been

involved in all types of offences viz., bodily and other heinous

offences and has been creating terror in the minds of innocent public

in and around the Allagadda town.

3. The 2nd respondent filed counter and opposed the writ

petition.

4. Heard arguments of Sri D.Purna Chandra Reddy, learned

counsel for the petitioner and Special Government Pleader

representing learned Advocate General for respondents.

5. Though several grounds were raised against the detention

order, learned counsel for petitioner mainly argued that in all the six

cases, which were considered for ordering preventive detention, the

detenue was granted bails by the concerned criminal courts,

however, the Sponsoring Authority has not placed said information

along with bail applications and orders before the Detaining

Authority and no discussion was made in the detention order with

regard to the said fact. Learned counsel would strenuously argue

that only after satisfying that even though the petitioner is on bail,

there is a likelihood of his repeating similar offences and acting

prejudicial to maintenance of public order, the Detaining Authority

shall pass the detention order. Since the relevant material was not

placed before him by the Sponsoring Authority, there was no

occasion for the Detaining Authority to consider the said crucial

aspect and mention in his order. Therefore, the subjective

satisfaction of the Detaining Authority in ordering the detention is

vitiated for non-furnishing of the relevant material before him.

(a) Learned counsel would further argue that it is the duty of

the Detaining Authority to furnish the materials considered by him

including the bail applications and bail orders. All those materials

have to be furnished to the detenue in order to enable him to make

an effective representation to the Advisory Board or the

Government. Learned counsel lamented that in the instant case,

since the Sponsoring Authority itself has not furnished the materials

relating to the bail applications and bail orders to the Detaining

Authority, there was no scope for the Detaining Authority in turn to

pass on the said material to the detenue. Due to non-furnishing of

the bail applications and bail orders, learned counsel argued, the

detenue was denuded of valuable opportunity to make an effective

representation before the Advisory Board. He emphasized that due

to such gross violation of the rule, the detention order became per se

illegal. He placed reliance on Gattu Kavita v. State of

Telangana 1 and Vasanthu Sumalatha v. State of Andhra

Pradesh, rep. by its Chief Secretary, Hyderabad2.

(b) Learned counsel further argued that earlier the petitioner

filed W.P.No.8720/2023 on different grounds but not on the grounds

raised in the writ petition and the said writ petition No.8720/2023

2016 SCC Online Hyd 718 = (2017) 1 ALD (Cri) 224

2015 SCC Online Hyd 790 = (2016) 1 ALT 738 (DB

was dismissed. Since the present writ petition is filed on a new

ground that the bail applications and bail orders were not furnished

to the Detaining Authority and to the detenue and thereby the entire

detention order was vitiated by law, the instant application is not hit

by the principle of constructive res judicata and this court may

consider the grounds now raised in this application and pass order.

He placed reliance on Lallubhai Jogibhai Patel v. Union of India3

to argue that the principle of constructive res judicata has no

application to the case on hand.

6. In oppugnation, learned Special Government Pleader argued

that indeed the petitioner took the plea of non-forwarding of bail

applications and bail orders to the Detaining Authority and to the

detenue in the earlier W.P.No.8720/2023 and a Division Bench of

this High Court has discarded the said contention and dismissed the

W.P.No.8720/2023 and therefore, the instant writ petition which is

based on the same ground is hit by the principle of res judicata. He

argued that without challenging the said order the petitioner cannot

file a new writ petition. He thus prayed to dismiss the writ petition.

1981 (2) SCC 427

7. The points for consideration are:

(1) Whether the writ petition is hit by the principle of res judicata/constructive res judicata ?

(2) If not, whether there are merits in the writ petition to allow ?

8. Point No.1:

The applicability of principle of res judicata /

constructive res judicata in habeas corpus petitions was considered

by the Apex Court in T.P. Moideen Koya v. Government of

Kerala4. The facts in that case are that the petitioner therein was

detained for the offence under the Conservation of Foreign

Exchange and Prevention of Smuggling Activities Act

(COFEPOSA Act). The High Court of Kerala dismissed the

Habeas Corpus petition filed by his wife. The SLP (Criminal) filed

thereafter in the Apex Court was also dismissed on detailed order.

Thereafter writ of habeas corpus was filed under Article 32 of the

Constitution in the Apex Court. In that context, the bar of writ

petition under res judicata was considered. The Apex Court made a

survey of various decisions and observed thus:

(2004) 8 SCC 106 = MANU/SC/0846/2004

"11. The principle which can be culled out from these authorities is that the bar of res judicata or constructive res judicata would apply even to a petition under Article 32 of the Constitution where a similar petition seeking the same relief has been filed under Article 226 of the Constitution before the High Court and the decision rendered against the petitioner therein has not been challenged by filing an appeal in the Supreme Court and has been allowed to become final.

However, this principle, namely, the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits or by a non-speaking order) and the said decision is not challenged by preferring a Special Leave Petition under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus." (Emphasis Supplied)

The Apex Court however observed that the facts were quite

different before it in that case as the original habeas corpus petition

filed before the High Court was dismissed and the resultant SLP was

also dismissed by the Apex Court. Therefore, the question was

whether even in such circumstances a subsequent petition under

Article 32 of the Constitution challenging the detention order would

be maintainable. The Apex Court in that context held thus:

"5. We would like to clarify here that the subsequent petition under Article 32 of the Constitution seeking a writ of habeas corpus for setting at liberty a person who has been detained under any of the detention laws would be

maintainable if the circumstances have changed. It would also be maintainable on the grounds which were not available when the earlier petition was decided (Emphasis Supplied). To illustrate, a detenu soon after his detention may file a habeas corpus petition on the ground that the concerned officer of the Government passing the detention order had no authority to do so or the grounds of detention relate to "law and order" and not to "public order" ( in a case where detention order has been passed under National Security Act), If such a petition is dismissed by the High Court and the judgment is affirmed by this Court in a special leave petition under Article 136 of the Constitution, it would always be open to him to tile a petition under Article 32 assailing his continued detention on the ground of inordinate and unexplained delay in consideration of his representation or some procedural infirmity which may have occurred subsequent to the decision of this Court.

9. Thus, the principle in T.P. Moideen Koya's case (supra 4) is

that when a habeas corpus petition is dismissed by the High Court,

the petitioner can file similar application challenging the detention

order before Supreme Court under Article 32 of the Constitution

even without challenging the earlier order by preferring a SLP under

Article 136 of the Constitution. However, if a SLP was filed and

same is dismissed, then subsequent petition under Article 32 of the

Constitution seeking writ of habeas corpus would be maintainable

under changed circumstances and by projecting new grounds.

10. In Srikant v. District Magistrate, Bijapur5 the Apex Court

after considering T.P. Moideen Koya's case (Supra 4) and other

decisions has observed thus:

"8. Whether any new ground has been taken, has to be decided by the court dealing with the application and no hard-and-fast rule can be laid down in that regard. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds."

The above are the decisions on the applicability / non-

applicability of res judicata in habeas corpus writ petitions.

11. Be that as it may, in Lallubhai Jogibhai Patel's case (supra

3) the Apex Court on the aspect of applicability of constructive res

judicata observed thus:

"13.The position that emerges from a survey of the above decisions is 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 inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief." (Emphasis Supplied)

12. In substance, the jurisprudence on the applicability of res

judicata /constructive res judicata in habeas corpus writ petitions is

thus:

(2007) 1 SCC 486

(a) If a habeas corpus writ petition is dismissed by the High

Court under Article 226 of the Constitution, the petitioner

can file a writ petition under Article 32 of the Constitution

before the Apex Court on same grounds without

questioning the order of the High Court in a SLP under

Article 136 of the Constitution before Supreme Court.

(b) However, if against the order of the High Court, a SLP

was filed and dismissed by the Apex Court, no petition

under Article 32 of the Constitution can be filed in the

Supreme Court on the same grounds but a separate petition

under Article 32 can be filed with new grounds.

(c) Constructive res judicata has no application to Habeas

Corpus petitions where liberty of an individual is involved.

13. Be that as it may, a perusal of the order in WP No.8720/2023

shows that in paras-19 and 20 the Division Bench observed thus:

"19. The contention of the learned counsel for the petitioner is that the order of detention was passed by the respondent- authorities without considering bail order, and therefore pleads that the order is contrary to law and relied on the judgment of this Court in batch of Writ Petition No.7335 of 2023 dated 03.07.2023.

20. The said order is not applicable to the present facts of the case. In the said case, a detention order was passed observing that there is every possibility of detenu being released on bail, on such release there is every possibility of committing offence and it will have impact of maintenance of the public order, or in all probability indulge in prejudicial activities, relying on the judgment of Apex Court in Champion R.Sangma v. The State of Meghalaya. In the present case, the detention order empathetically states that the petitioner was indulged in criminal activities under the Chapter XVI of the Indian Penal Code. Therefore, the detention order was not passed on the ground that there is possibility of the detenu being released on bail and he would in all probability indulge in prejudicial activities. Therefore, the said order in W.P.No.7335 of 2023 and batch is not applicable to the present facts of the case."

14. The above observation would show that the petitioner, it

appears, has taken the plea that the bail orders granted in his favour

were not considered by the respondent authorities which plea is

taken by him now also.

15. However, in the subsequent paragraphs the Division Bench

has not addressed the effect of non-consideration of the bail orders

by the respondent authorities. Therefore, though the petitioner took

the plea similar to the one in the present writ petition, the same was

not answered in the earlier order. In that view of the matter and as

the writ petition is for habeas corpus concerning the liberty of the

individual, we hold that the principle of res judicata or constructive

res judicata has no application to the case on hand. This point is

answered accordingly.

16. Point No.2

This point is concerned, preventive detention under Article 22

of the Constitution of India is an exception to Article 21. It being

not a punitive detention, the law cautioned the detaining authority to

scrupulously follow the safeguards and procedures before ordering

preventive detention. One of such procedural safeguards is that if

the detenue was already granted conditional bails in the crimes

which were taken as a ground for ordering preventive detention, it

will be the solemn duty of the Sponsoring Authority to bring the said

fact to the notice of the Detaining Authority by placing before it the

bail applications and bail orders for its consideration. Failure on the

part of the Sponsoring Authority to do so and also the failure on the

part of the Detaining Authority to consider aforesaid material on

being placed before it, render the detention per se illegal. The law

on this aspect is no more res integra. In Vasanthu Sumalatha (2

supra), a Division Bench of the common High Court of Andhra

Pradesh has observed thus:

"43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor (2013 Crl.L.J. 585); Durgam Subramanyam v. Government of A.P. (2013 (4) ALT 243 (D.B); State of U.P v. Kamal Kishore Saini ((1988) 1 SCC 287; M. Ahamedkutty vs Union Of India 1990 SCR (1) 209, 1990 SCC (2) 1. Non-placing and non-consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order. [Durgam Subramanyam's case (supra).

54. Neither the order nor the grounds of detention refer either to the conditional or the unconditional orders of bail granted in favour of the detenus. As noted hereinabove failure of the detaining authority to consider the orders granting conditional bail would vitiate the orders of detention. ..xxx..."

17. It should be noted that in the above decision, the judgment in

Sunila Jain v. Union of India6 relied upon by the learned Special

Government Pleader was distinguished on facts. In Sunila Jain,

copy of the order granting bail and order of remand has been

furnished to the detenue. In that context, it was observed by the

Hon'ble Apex Court that non-furnishing of a copy of the application

of bail cannot be said to be a ground and that all the documents

placed before the detaining authority are not required to be supplied

MANU/SC/8053/2006 = (2006) 3 SCC 321

and only relevant and vital documents are required to be supplied.

The said judgment was distinguished in Vasanthu Sumalatha case

(2 supra) as follows:

"53. Unlike in Sunila Jain (supra) where a copy of bail application, for an offence which was bailable, was not furnished and a copy of the order granting bail and the order of the remand were furnished to the detenu, in the present case the orders granting conditional bail were neither considered by the detaining authority nor were copies thereof furnished to the detenu. The conditional orders of bail restricted the movement of the detenus and required them to appear before the officer concerned periodically. If these conditional orders of bail had been brought to his notice, it may well have resulted in the detaining authority arriving at the subjective satisfaction that the detention of the detenus were unnecessary. Reliance placed by the Learned Advocate-General on Sunila Jain (supra) is, therefore, misplaced."

In Gattu Kavitha case (supra 1), another Division Bench of

the common High Court of Telangana & A.P. expressed similar

view as follows:

"14. From the ratio in the decision, it is clear that non-supply of conditional bail orders by the sponsoring authority to the detaining authority and failure to refer to the same in the order of detention and grounds of detention, and non- consideration of such vital and relevant material, invalidates the detention order. The law laid down in Vasanthu Sumalatha v. State of Andhra Pradesh, 2016 (2) ALD (Crl.) 156, which was recently affirmed by us in W.P.No.4805/2016 to the effect that failure to supply documents relied upon by the detaining authority would result in denying an opportunity to make an effective representation as guaranteed under Article 22(5) of the Constitution of India, would squarely apply to the instant case.

18. In the light of the above jurisprudence, when facts of the

instant case are perused, in the counter filed by the 2nd respondent, it

has been specifically mentioned that in the above 6 cases which

were taken for consideration, the detenue was granted bail in almost

all the cases and in few cases notice U/s 41-A of Cr.P.C was issued.

However, when we perused the detention order and grounds of the

detention, there was no reference therein about granting of

conditional bails in the concerned crimes. Thus, it is obvious that

the Sponsoring Authority has not placed the relevant material i.e.,

bail applications and bail orders before the Detaining Authority and

thereby there was no effective consideration of this fact. Further,

along with the counter the 2nd respondent enclosed the material