Madras High Court
Boominathan vs The State Of Tamil Nadu Rep. By Its on 13 June, 2023
HCP(MD) SR No.10405 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.06.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
and
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
H.C.P.(MD) SR No.10405 of 2023
Boominathan .. Petitioner / Father of the detenu
Vs.
1.The State of Tamil Nadu Rep. by its
The Principal Chief Secretary to Government,
Home, Prohibition and Excise Department,
St. George Fort, Chennai – 600 009.
2.The State of Tamil Nadu Rep. by its
The Deputy Secretary to Government,
Home, Prohibition and Excise - IX Department,
St. George Fort, Chennai – 600 009.
3.The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City.
4.The Deputy Commissioner of Police,
Head Quarters,
Madurai City.
5.The Inspector of Police (L&O),
B-3 Theppakulam Police Station,
Madurai City.
Page 1 of 8
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HCP(MD) SR No.10405 of 2023
6.The Superintendent of Prison,
Central Prison,
Madurai. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus, call for the records relating to the detention order
passed by the 2nd respondent in No.44/BCDFGISSSV/2022, dated
24.06.2022 and quash the same and direct the respondents to produce the
body or person of the petitioner's son detenu namely as Senbhagamoorthy,
aged about 28 years, S/o.Boominathan (Now detained at Central Prison,
Madurai) before this Court and set him at liberty
For Petitioner : Mr.A.P.Muthupandian
ORDER
[Order of the Court was made by R.SURESH KUMAR, J.]
This Habeas Corpus Petition has been filed to quash the detention
order of the 2nd respondent in No.44/BCDFGISSSV/2022, dated 24.06.2022
and direct the respondents to produce the detenu, Senbhagamoorthy, aged
about 28 years, S/o.Boominathan, who is detained at Central Prison,
Madurai, before this Court and set him at liberty.
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HCP(MD) SR No.10405 of 2023
2. This Habeas Corpus Petition SR No.10405 of 2023 is posted before
us under the caption for maintainability.
3. Heard Mr.A.P.Muthupandian, learned counsel appearing for the
petitioner.
4. Insofar as the maintainability of this Habeas Corpus Petition is
concerned, as against the very same detention order, already a Habeas
Corpus Petition in H.C.P.(MD) No.1422 of 2022 was filed by the very same
petitioner and in the said Habeas Corpus Petition 15 grounds were raised on
behalf of the detenu and it was argued accordingly. The grounds urged
before the Coordinate Bench of this Court were considered and the Bench
ultimately passed order on 09.01.2023, dismissing the said Habeas Corpus
Petition.
5. After 5 months, now the petitioner has chosen to file second
Habeas Corpus Petition, stating that some new grounds have been raised in
this Habeas Corpus Petition, therefore, this Habeas Corpus Petition is
maintainable. Raising doubt over the said stand taken by the petitioner as to
how the second Habeas Corpus Petition is maintainable, the office put a
note for maintainability, accordingly it has come for maintainability.
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HCP(MD) SR No.10405 of 2023
6. The learned counsel appearing for the petitioner by relying upon
the Division Bench judgment of this Court in H.C.P.(MD) No.571 of 2012
in the matter of D.Vijayakumari v. State of Tamil Nadu and another dated
24.05.2012 would submit that if at all any new grounds, which are made
available to the detenu and that has been raised now in the second Habeas
Corpus Petition, that would be maintainable since the principle of
constructive res judicata would not be made applicable to the illegal
detention cases.
7. In support of his submission, he relied upon para 63 in the said
judgment:-
“63. On going through the new grounds 1 to 10 raised in
H.C.P.No.571 of 2012, it is quite evident that except the
Ground No.3, other grounds taken in H.C.P.No.571 of 2012
have not been taken in earlier H.C.P.No.1498 of 2011, for the
same relief, in our considered opinion. Undoubtedly, the plea of
res judicata or constructive res judicata as applicable to civil
proceedings is inapplicable to the plea of illegal detention.
Therefore, the H.C.P.No.571 of 2012 filed by the wife of the
detenu on fresh/new grounds for the same relief is maintainable
in law and the point is so answered.”
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HCP(MD) SR No.10405 of 2023
8. However, it is to be noted that the new ground, according to the
learned counsel for the petitioner is ground No.5, similar to that, already a
ground has been raised in ground No.14 in the earlier affidavit filed in
support of the earlier Habeas Corpus Petition i.e., in H.C.P. (MD) No.1422
of 2022 filed by the very same petitioner, which was considered and the
Habeas Corpus Petition was dismissed by the Division Bench on
09.01.2023.
9. Further, it is to be noted that, in yet another Division Bench
judgment on the similar issue in the matter of Geetha v. State of Tamil
Nadu and others in H.C.P. No.276 of 2006, by order dated 22.03.2006 a
Division Bench of this Court has held in the following terms:-
“4. First of all, we are not accepting the said contention.
It is not the case of the learned counsel for the petitioner that
the said point was not available to the petitioner when the
earlier Habeas corpus petition was filed. In this regard, it is
useful to refer two Division Bench decisions of this Court
rendered in HCP. No. 94 of 2004 dated 28.01.2004 (Kasturi v.
State of Tamil Nadu) and HCP. No. 142 of 2004 dated
06.02.2004 (S. Sarasa v. State of Tamil Nadu). In the above
said decisions, the Division Bench observed that when a point
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HCP(MD) SR No.10405 of 2023
raised in the second Habeas corpus petition was very well
available at the time of hearing of the first Habeas corpus
petition, the same cannot be agitated again and again in
subsequent petitions. In view of the fact that the present ground
was very well available to the petitioner at the time of hearing
of the earlier Habeas corpus petition, we are of the view that
the principle laid down in both the decisions is applicable to
the case on hand. Further, it is fairly stated by the learned
counsel for the petitioner that even this point has not been
raised in the affidavit filed in support of the present petition.”
10. What was held in the said judgment is that if at all any grounds
that are urged in the second Habeas Corpus Petition as a new ground and
those grounds could have been raised in the first Habeas Corpus Petition
itself, as they were already available at the time of filing the Habeas Corpus
Petition and the petitioner or the detenu failed to raise those grounds, that
cannot once again or again and again be raised. Here, in the case in hand,
the ground No.5 was already available with the petitioner, which in fact has
been raised, of course, in a different language in ground No.14 of the earlier
Habeas Corpus Petition. Therefore, it cannot be first of all stated that the
ground has not been raised so far. Secondly, assuming that it is a new
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HCP(MD) SR No.10405 of 2023
ground, whether that ground was available at the time of filing of the first
Habeas Corpus Petition is to be tested in view of the aforestated Division
Bench judgment and the ground i.e., Ground No.5 herein raised by the
petitioner was very well available to be raised by the petitioner in the first
Habeas Corpus Petition itself, which he has not raised. Futher, assuming
that it is a new ground, as stated by the learned counsel appearing for the
petitioner, even in that case also, the same cannot again and again be raised
as per the dictum of the Division Bench in the said judgment of Geetha v.
State of Tamil Nadu (cited supra).
11. In view of the aforestated reasons, we are not inclined to entertain
this Habeas Corpus Petition as it is not maintainable and hence, it is rejected
at the S.R. stage itself.
[R.S.K.,J.] & [K.K.R.K.,J.]
13.06.2023
Index : Yes/No
Internet : Yes/No
NCC :Yes/No
SJ
https://www.mhc.tn.gov.in/judis
HCP(MD) SR No.10405 of 2023
R.SURESH KUMAR,J.
and
K.K.RAMAKRISHNAN,J.
SJ
To
1.The Principal Chief Secretary to Government,
Home, Prohibition and Excise Department,
The State of Tamil Nadu,
St. George Fort, Chennai – 600 009.
2.The Deputy Secretary to Government,
Home, Prohibition and Excise - IX Department,
The State of Tamil Nadu,
St. George Fort, Chennai – 600 009.
3.The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City.
4.The Deputy Commissioner of Police,
Head Quarters,
Madurai City.
5.The Inspector of Police (L&O),
B-3 Theppakulam Police Station,
Madurai City.
6.The Superintendent of Prison,
Central Prison,
Madurai.
7.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
HCP.(MD) SR No.10405 of 2023
13.06.2023
https://www.mhc.tn.gov.in/judis
