Bombay High Court
Rashid @ Jagga Shaukat vs The Commissioner Of Police And Ors on 14 March, 2016
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4416 OF 2015
Rashid @ Jagga Shaukat Hussein Sayyed .. Petitioner
Versus
The Commissioner of Police, Mumbai
and Others .. Respondents
...................
Appearances
Mr. Udaynath Tripathi Advocate for the Petitioner
Mr. J.P. Yagnik APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
DATE : MARCH 14, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard both sides.
2. Rule. By consent, Rule made returnable forthwith.
3. This petition under Article 226 of the Constitution of
India seeks to challenge the order of detention under Section
3 of Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-offenders and Dangerous
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Persons Act, 1981 ('M.P.D.A. Act' for short) passed against
the detenu. The petitioner had earlier filed Writ Petition No.
2640 of 2015 challenging the validity of the very same
detention order. The said Writ Petition came to be dismissed
by the Division Bench of this Court by order dated 11.8.2015
after hearing the learned counsel for the petitioner and the
learned APP. The present petition is on the footing that
fresh and new grounds of attack against the order of
detention have been raised in the present petition and that
successive petition on such fresh and new grounds is not
barred on the principle of res-judicata or constructive res-
judicata and hence, this petition ought to be decided on its
own merit. The point in this petition thus concerns the
permissibility of successive petition under Article 226 of the
Constitution of India challenging an order of detention and
the parameters to be considered by the writ Court while
entertaining such a petition.
4. Two grounds have been raised in the present petition.
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The first ground is in relation to delay in considering the
representation and the second ground is delay in executing
the order of detention. As far as, the first ground is
concerned, Mr. Tripathi, learned Advocate for the petitioner
states that he is not pressing the said ground and he is only
pressing the second ground i.e delay in executing the order
of detention. The learned APP however raised a preliminary
objection that the second ground is not a new ground and
hence, a Writ Petition raising such a ground is not
maintainable.
5. It is to be noted that after extensive hearing, the Writ
Petition which was earlier filed by the detenu i.e Writ Petition
No. 2640 of 2015 was dismissed by the Division Bench of this
Court. Mr. Tripathi submitted that the second ground i.e
delay in executing the order of detention was not raised in
the earlier petition and hence, not considered by this Court
while deciding the earlier Writ Petition. He submitted that
this ground of delay in executing the order of detention is a
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new ground and hence is not barred by principles of res-
judicata or constructive res-judicata. In support of his
contention that the second petition by a detenu is
permissible against the very same detention order, he has
placed reliance on a decision of the Supreme Court in the
case of Shrikant Vs District Magistrate, Bijapur & Ors.1.
6.
Mr. Tripathi relied on the observations in paragraph 8 of
the decision in the case of Shrikant (supra) which is as
under:-
"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."
(Emphasis supplied)
Thus, on reading of the decision in the case of Shrikant
(supra), it is seen that when there is new ground, a Writ
Petition can be entertained. The Concise Oxford English
Dictionary (Eleventh Edition, Revised) states that "new"
1 (2007) 1 SCC 486
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means for the first time and not existing before.
Encyclopaedic Law Lexicon by Justice C.K. Thakker 2013
Second Edition states that "new" means not existing before:
now made, or brought into existence, for the first time. It
also means something which was not existing before or
brought into existence for the first time, not previously
known and now known for the first time.
7. The ground raised by the petitioner in this second
petition is that there was delay in executing the order of
detention. This is a ground which was known to the
petitioner at the time of filing his first petition i.e Writ
Petition No. 2640 of 2015. This is not something that he
discovered for the first time at the time of filing of the
present petition. It cannot be said that this is a ground which
was not existing when he filed the first petition. It cannot be
said that this ground was not existing before or was not
previously known to the petitioner and it became known to
the petitioner for the first time only at the time of filing his
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second petition and was not known to him when he filed his
first petition. On looking to the facts of this case stated
above by us, it cannot be said that this ground of delay in
execution which is raised in ground (b) of the present
petition is a new ground, hence, as such, this petition is not
maintainable.
8.
Thereafter, Mr. Tripathi placed reliance on the decision
of the Supreme Court in the case of Baby Devassy Chully
@ Bobby Vs. Union of India & Ors.2 to support his
contention that a second petition is maintainable. He relied
on the observations in the said decision which finds place in
paragraph 21 which is as under:-
" In view of the same and in the light of the additional
grounds raised and also of the fact that the issue relates to
personal liberty of a citizen, we reject the objection of the
respondents and hold that the present appeal cannot be
dismissed on the grounds of res judicata."
However, these observations cannot be read in
isolation and the facts of the case have to be seen. In this
case, Writ Petition was filed directly before the Supreme
2 (2013) 4 SCC 531
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Court under Article 32 of the Constitution of India against the
order of detention. This Writ Petition came to be dismissed.
Thereafter, the petitioner filed a Writ Petition under Article
226 against the same order of detention before the High
Court. The said Writ Petition came to be dismissed. Then,
the petitioner filed an appeal against the order of High Court
before the Supreme Court and the question was whether the
dismissal of the earlier Writ Petition under Article 32 would
operate as a bar to the appeal preferred by the detenu
against the order of the High Court dismissing his Writ
Petition. Before the Supreme Court made the observations
which were relied upon by Mr. Tripathi, it has reproduced
paragraph 10 of the decision of the Supreme Court in the
case of Kirit Kumar Chaman Lal Kundaliya Vs. Union of
India3 which are as under:-
"10....... The doctrine of finality of judgment or the principles of
res judicata are founded on the basic principle that where a court
of competent jurisdiction has decided an issue, the same ought
not allowed to be agitated again and again. Such a doctrine
would be wholly inapplicable to cases where the two forums
have separate and independent jurisdictions. In the instant case,
the High Court decided the petition of the detenu under Article
3 (1981) 2 SCC 436
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226 which was a discretionary jurisdiction whereas the
jurisdiction to grant relief in a petition under Article 32 filed in the
Supreme Court is guaranteed by the Constitution and once the
court finds that there has been a violation of Article 22(5) of the
Constitution, then it has no discretion in the matter but is bound
to grant the relief to the detenu by setting aside the order of
detention. The doctrine of res judicata or the principles of finality
of judgment cannot be allowed to whittle down or override the
express constitutional mandate to the Supreme Court enshrined
in Article 32 of the Constitution."
(emphasis supplied)
Thus, the Supreme Court has made these observations
on the basis that when there are two forums and the two
forums have an independent jurisdiction and considering
that the powers of the Supreme Court under Article 32 of the
Constitution of India are not discretionary whereas powers
under Article 226 exercised by the High Court are
discretionary in nature, then the doctrine of res judicata is
not applicable. Thus, these observations were made in the
light of the powers of the Supreme Court under Article 32
and in view of the fact that there were two separate forums
having independent jurisdiction. However, this Court had
dismissed the earlier Writ Petition under Article 226 of
Constitution of India and now a fresh petition has been
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preferred before this Court under Article 226 of the
Constitution of India. Thus, the forum is also the same as
well as the jurisdiction of both the Courts when the earlier
Writ Petition was preferred and the present Writ Petition has
been preferred is also the same. Moreover, this Court does
not have powers under Article 32. Thus, this decision also
would be of no help to the petitioner.
9. The Supreme Court in the case of Lallubhai Jogibhai
Patel Vs Union of India & Ors.4 has observed that in
England, no second petition for writ of habeas corpus can be
brought in the same court except on fresh evidence.
Thereafter, in paragraph 7 of this decision, the Supreme
Court quoted with approval the decision in the case of
Calcutta Gas Co. (Proprietary) Ltd Vs State of W.B. 5
wherein it was observed thus:-
" No second petition for writ of habeas corpus lies to the High
Court on a ground on which a similar petition had already been
dismissed by the Court. However, a second such petition will lie
when a fresh and a new ground of attack against the legality of
4 (1981) 2 SCC 427
5 AIR 1962 SC 1044
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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."
Thus, here also the Supreme Court has stated that the
second petition will lie when there is new and fresh ground of
attack. In the present case, the ground taken by the
petitioner of delay in execution of the detention order was
known to the petitioner when the detention order dated
17.4.2015 was served on him. It was served on him much
prior to filing the first petition. Thus, it was not a ground
which arose after the first petition of the detenu was
dismissed. In such case, it cannot be said to be a fresh and
new ground. Moreover, no reason, leave alone exceptional
reason is stated as to why this ground was not taken in the
earlier writ petition, hence, in this view of the matter also,
the second petition cannot be entertained.
10. Learned APP relied on the decision of this Court in the
case of Deepesh Mahesh Zaveri Vs Union of India &
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Ors.6 wherein it is held that only in two exceptional
circumstances, second petition would lie i.e - (1) fresh and
new ground of attack against the legality of the detention or
custody has arisen after the decision of the first petition; and
(ii) where for some exceptional reason ground has been
omitted in the earlier petition. In such situations, the Court
will hear the second petition on such a ground for ends of
justice. We may reiterate that the only ground urged before
us in the second petition is not something which is a fresh
and new ground of attack which has arisen after the decision
of the first petition. The petitioner could very well have
raised this ground in the first petition itself. No exceptional
reason has been pointed out as to why this ground was
omitted in the earlier petition.
11. Thereafter, reliance was placed by the learned APP on
the decision of this Court (Aurangabad Bench) in the case of
Rushikesh Tanaji Bhoite Vs State of Maharashtra &
Ors.7. In this decision, it was held that the second petition
6 1998 (2) Mh.L.J. 634
7 2012(1) Bom..C.R (Cri) 344
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would lie when a fresh and new ground as to legality of
detention has arisen after decision on first petition or for an
exceptional reason ground had been omitted in first petition.
Similar view was taken by this Court in the case of Khushbu
Sandeep Jain (Smt) & Anr. Vs. State of Maharashtra &
Ors.8
12.
In the present case, it is seen that the ground which is
sought to be relied on in this petition was very much
available to the detenu when the earlier petition was filed.
No reason has been pointed out much less an exceptional
reason as to why this ground was not urged in the earlier
petition. As stated earlier, the ground taken in the present
petition cannot be said to be a new ground. In this view of
the matter, we are not inclined to entertain this petition.
Hence, the Writ Petition is dismissed. Rule discharged.
[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
8 2014(3) Bom.C.R. (Cri) 636
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