Holding

The doctrine of constructive res judicata does not bar fresh grounds in a writ of habeas corpus under Article 32, and the detention order is void for not furnishing the referred documents and for the unauthorized rejection of the detenu's representation.

Summary

Kirit Kumar was detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. He challenged the detention in the Gujarat High Court, arguing that documents referred to in the grounds of detention were not supplied, preventing an effective representation. The High Court dismissed the petition, holding that the documents were merely referred to and not relied upon. The petitioner then filed a Special Leave Petition and a writ petition under Article 32, raising additional grounds that the Secretary, not the Home Minister, had decided on the relevance of the documents and had rejected the representation. The Supreme Court held that the doctrine of constructive res judicata does not apply to habeas corpus petitions under Article 32 and that successive petitions are permissible if they raise fresh points. It further held that the order of detention was void because the detaining authority did not supply the documents and the representation was rejected by an unauthorized official. Consequently, the petition was allowed and the petitioner was ordered to be released.

Issues considered

The applicability of the doctrine of constructive res judicata to successive habeas corpus petitions under Article 32.
Whether documents "referred to" or "relied upon" in the grounds of detention must be supplied to the detenu.
Whether the failure to supply such documents vitiates the order of detention.
Whether a representation rejected by the Secretary, rather than the Home Minister, invalidates the detention order.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Acts. 3

Subjects

habeas corpusArticle 32constructive res judicatadetention orderforeign exchange actright to representationArticle 22(5)ministerial authorityliberty

Judgment

718

A KIRIT KUMAR CHAMAN LAL KUNDALIYA
v.
STATE OF GUJARAT & ORS.
•
January 30, 1981
[S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.l
B
Constitution of India-Art. 32-Habeas Corpus petition-Urging additional
grounds in different petitions-If barred by constructive res judicata.
Conservation of Foreign Exchange and Preve11tion of Smuggling Activities
Act--Section 3-Petitioner's representation rejected by Secretary to the Depart-
1nent but not by the detaining authority-Validity of.
c Words and Phrases : "relied on", «referred to", "based on'~ meaning! df.
The petitioner filed a Special Leave Petition impugning the order of the
Foreign Exchange and Prevention of Smuggling Activities Act impugned tho
order of his detention on the grounds that the materials relied upon in the order
of detention were not supplied to him and that two of the documents referred
to in the order of detention were not supplied to him because the Secretary of
D the Department thought that they were not relevant.
After exaomining the file and relevant documents the High Court held that
failure to supply them did not vitiate the order of detention.
The petitioner filed a Special Leave Petition impugning the order of the
High Court and also a petition under article 32 urging certain additiona~
grounds that the endorsement by the Secretary showed that it was he who
E decided the relevancy of the documents to be supplied and not the Minister
Who was the detaining authority and (2) his representation was rejected by the
Secretary acting on behalf of the Minister instead of the Minister himself.
A preliminary objection was raised on behalf of tho State that the points
not raised in the Hi,2h Court by the detenu could not be: agitated in a writ
petition under Article 32 because that is barred by the principle of constructive
F re~ judicata.

Allowing the petition,
HELD : The well established position in law is that so far as petitions for. j
habeas corpus are concerned the doctrine of constructive res judicata could not
apply. Secondly even successive petitions for habeas corpus under article 32
would be maintainable in this Court provided the points raised in the subse-
G quent petitions are additional points not covered or agitated in the previous
petitions. Thus if the principles of res judicata could not apply to successive
writ petitions in this Court, much less could they be attracted to cases where
points were not agitated before the High C'ourt but were raised for the first
time in this Court in a writ petition under Article 32. [723B&E]
•
Shri Lallubhai Jogibhai Patel v. Union of India & Ors. [1981] 2 S.C.R. 352,
B followed.
Ghulam Sarwar v. Union of India & Ors. [1967] 2 S.C.R. 271, held inappli-
cable.
KIRIT KUMAR v. GUJARAT (Fazal Ali, !.) 719
•
The doctrine of finality of judgment or principles of res judlcata are found· A
ed on the basic principle that where a Court of competent jurisdiction h~
decided an issue, the same ought not to be allowed to be agitated a-gain and
again. Such a doctrine would be wholly inapplicable to cases where the two
forums have separate and independent jurisdictions. [723F]

B
The jurisdiction under Article 226 is a discretionary jurisdiction where8$
the jurisdiction to grant relief in & petition under Article 32 is guaranteed by
the Constitution. Once the Court finds that there has beetn a violation o~
Article 22(5) of the Constitution it has no discretion in the matter but is
, bound to grant the relief to the detenu. The doctrine of res judicata or th<i
, _principles of finality of judgment cannot be allowed to whittle down or over-
._....- ride the express constitutional mandate to the Supreme Court enshrined in C
Article 32 of the Constitution. [723G-H]

The concept of liberty has now been widened by Maneka Gandhi's case
[1978] 2 S,CR- 621 wher"' Article 21 as construed by this Court has added new
dimensions to the various features and concepts of liberty as enshrined in
Articles 21 and 22 of the Constitution, [724B] D

Smt, Santosh Anand v, Union of India & Ors,, W,P. No, 1097/79 (decided
on 31- I 0· 1979) referred to,

11 was not open to the High Court to have waded through the confidential E
file of the Government in order to fish out a point against the detenu. Secondly.
the question of relevance was not to be decided by the Court but by the detain"'
ing authority which alone had to consider the representation of the detenu on
merits and then come to the conclusion whether it should be accepted or
rejected. As the reasoning of the High Court was legally erroneous the order
of the High Court cannot be allowed to stand, [724D-E]

Before the grounds were served on the petitioner, the documents , were
~ placed before the detaining authority and were, therefore, referred to in the
grounds of detention. Manifestly the subjective satisfaction could only be
ascertained from or reflected in the grounds of the order of detention passed
against the detetnu; otherwise without giving the grounds the mere subjective
satisfaction of the detaining authority would make the order of detention G
incomplete and ineffective. Once the documents are referred to in the grounds
of detention it becon1es the bounden duty of the detaining authority to supply
the same to the detenu as part of the grounds or pari passu the grounds of
detention. There is no particular charm in the expressions 'relied on', 'referred
to' or 'based on' because ultin1ately all these expressions signify one thing,
namely, that the subjective satisfaction of the detaining authority bas been
arrived at on the documents mentioned in the grounds of detention, The ques- H
tion whether the grounds have been "referred to", "relied on" or "baBed on'' is
merely a matter of describing the nature of the grounds, [725A-CJ
720 SUPREME COURT REPORTS [1981] 2 S.C.R.

A Ram Chandra A. Kamat v. Union of India & Ors. [1980] 2 S.C.C. 271
applied.

S/1ri Tushar Thakkar v. Union of India & Ors. [1980] 4 S.C.C. 499 referred ~
to.
Whether the docu1nents concerned are "referred to", "relied upon" or
"taken into consideration", by the detaining authority they ha.Ye to be supplied
B to the detenu to make an effective representation immediatley on receiving the
grounds of detention. [725G·H]

c
In the present case this not having been done the continued detention of the
petitioner must be held to be void.
There \Vas no decision by the detaining authority that the documents were,
irrele\'ant. The documents concerned were examined not by the detaining-......._
authority but by the Secretary. There is nothing to show that the opinion or
1
endorsement of the Secretary was placed and approved by the detnining
authority. [7240]
The petitioner's representation had been rejected by an authority which had
no jurisdiction at all to consider or pass any orders on the representation of the
detenu. This renders the continued detention of the petitioner void. [7260]
D ORIGINAL JURISDICTION : Writ Petition No. 6354 of 1980.
(Under Article 32 of the Constitution)
AND
Criminal Appeal No. 53 of 1981.
Appeal by Special Leave from the Judgment and Order dated
E 25-11-1980 of the Gujarat High Court in Cr!. Application No. 218 of
1980.
Anil Divan, Harjinder Singh and M. M. Lodha for the Petitioner
in Writ Petition and in the Criminal Appeal.
M. N. Plwdke and M. N. S!JJ"off for Respondents 1-3.
F The Judgment of the Court was delivered by
FAZAL ALI, J.-By our Order dated 21-1-1981 we had already
allowed the petition and directed the detenu to be released forthwith. }
We now proceed to set out the reasons for the Order which we passed
on 21·1-1981.
The writ petition and the criminal special leave arise out of the
G
same subject matter, namely, that the !Petitioner (Kirit Kumar Chaman
Lal Kundaliya) was detained by an order passed by the Home Minis-
ter of the State of Gujarat on 9-9-1980 under s. 3 of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act.
The Petitioner/detenu in the first instance filed a petition for habeas
H corpus in the High Court of Gujarat which was dismissed by the
High Court by its order dated 25-11-1980. The detenu thereafter
filed a petition for special leave against the order of the High Court
KIRIT KUMAR v. GUJARAT (Fazal Ali, J.) 721

and also a writ petition under Art. 32 of the Constitution of India in A
this Court. Both the petition for special leave and the writ petition
• hav•e been heard together.

Before the High Court, the detenu assailed the order of detention
mainly on the ground that certain materials relied UIJOn or referred to
in the order of detention w~re not supplied to the detenu and hence he B
was not in a position to make an effective representation to the Govern-
ment. It was also pleaded by the detenu before the High Court that
two of the documents which were referred to in the order of detention
were not supplied to him because the Secretary thought that they were
not relevant.
c
Thoe High Court while examining the contention of the detenu sent
for the entire file from the Government and after examining the
documents itself found that .as the documents concerned were not
relevant and consisted of statements of some other persons, the failure
to supply the documents to the detenu did not vitiate the order of
D
dete'ntion. Hence the petition in thls Court for grant of special
leave against the order of the High Court.

A separate writ petition has also been filed by the detenu in this
Court in which apart from the point canvassed before the High Court
certain additional grounds have been taken. In the view that we
E
take in the present case. it is sufficient to refer only to two important
grounds that have been taken in the writ petition. In (he first place, it
was suggested that ·the endorsement by the Secretary shows that the
question as to whether or not the documents demanded by the detenu
were relevant was decided not by the Minister who was the detaining
authority but by the Secretary. Secondly, it was urged that although the F
the case relied upon by the respondents also does not decide that the
detenu made a representation to the State Government on 3-10-1980
~ the same was rejected on 14-10-1980 not by the detaining autho-
rity, namely, the Hon. Home Minister acting on behalf of the
Government but by the Secretary, and this infirmity was sufficient to
render the.order of detention void. G
Mr. Phadke appearing for the Smte took a preliminary objection
regarding the maintainability of the writ petition filed by the detenu in
this Court. The sheet-anchor of the argument of Mr. Phadke for the
State was that as the dctenu had not raised the additional points taken
in the High Court he could not be permitted to agitate those very points H
in the writ petition filed under Art. 32 of the Constitution as the same
were barred by the principles of constructive res ;udicata. In sup-
722 SUPREME COURT REPORTS [1981] 2 S.C.R.

A port of his argument he relied on a decision of this Court in the
case of Ghulam Sarwar v. Union of bidia & Ors.(1).

The learned counsel for the petitioner,- however, countered the •
submission of the respondents on the ground that a writ under Art. 32
being guaranteed by the Constitution the doctrine of res judicata mn
B have no application to a writ petition filed in this Court under Art. 32.
Mr. Dewan, learned counsel for the detenu further submitted that
the case relied upon by the respondents also does nqt decide that the
writ petition was not maintaining as being barred by principles of
res judicata. In our opinion, the contention raised by the l~arned ~
counsel for the detenu is well founded and must prevail.- Ghu/am · , .
c Sarwar's case (supra.) which was heavily relied on by the respon-
dents does not at all support the contention raised before us by them.
In that case this Court traced the history of habei\S corpus writs and
ultimately held that atleast so far as [petitions for habeas corpus are
concerned, the doctrine of constructive res judicata could not apply.
In this connection Subba Rao, C. J. observed as follows :--
D
"If the doctrine of res judicata is attracted to an appli-
cation for a writ of habeas corpus. there is no reason why the
principles of constructive res judicata cannot also govern the
said application, for the rule of constructivi: res judicata is
only a part of the general principles of the law of res judicata
E
and if that be applied, the scope of the liberty of an indi-
vidual will be considerably narrowed ...... If the doctrine
of constructive res judicata be applied, this Court, though it
is enjoined by the Constitution to protect the right of a per-
son illegally detained, will become powerless to do so. That
F would be whittling down the wide sweep of the constitutional
protection."

Bachawat, J., in his concurring judgment also endorsed the ~
view of Subba Rao, C. J., and observed as follows :
"The order of Khanna, J. dismissing the writ petition filed by
G
the petitioner in the Punjab High Court challenging the legality
of the detention order passed by the Ce!}tral Government under
s. 3(2) (g) of the Foreigners Act, 1946 and asking for the
issue of a writ of habeas corpus is not a judgment, and does not
operate as tes judicata. That order does not operate as a bar
B to the aPplication under Art. 32 of the Constitution asking for
the issue of a writ of habeas corpus on the same facts. The
(!) [1967! 2 S.C.R. 271.
KIRIT KUMAR V. GUJARAT (Fazal Ali, !.) 723

petitioner has fundamental right to move this Court under A
Art. 32 for the issue of a writ of habeas corpus for the pro-
tection of his right of liberty. The present petition must,
therefore, be entertained and examined on the merits."

Apart from the aforesaid case, there is a recent decision of a Con-
stitution Bench of this Court in Shri Lallubhai Jogibhai Patel v. Union B
of India & Ors.(') where this Court has held that even successive
petotions for habeas corpus under Art. 32 would be maintainable in
this Court provided the points raised in the subsequent petitions are
additional points not covered or agitated jn the previous petitions. In
this connection, Sarkaria, J. speaking for the Court observed as
follows : - c
"The position that emerges from a survey of the above deci-
sions 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 D.
a writ of habeas corpus under Art. 32 of the Constitution on
fresh grounds, which were not taken in the earlier petition
for the same relief"
Thus, if the principles of res judicata could not apply to successive
writ petitions in this Court much less could they be attracted in cases
E
where points were not agitated before the High Court but were raised
for the first time in this Court in a writ petition under Art. 32.
Apart from the cases discussed above there is another ground on
which the argument of Mr. Phadke for respondents must be rejected.
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 to be allowed to
I be agitated again and again. Such a doctrine would be wholly inapplic-
able to cases where the two forums have separate and independent
jurisdictions. In the instant case, the High Court decided the peti-
tion of the detenn under Art. 226 which was a discretionary jurisdic-
G
tion whereas the jnrisdiction to grant relief in a petition under Art. 32
., filed in the Supreme Court is guaranteed by the Constitution and once
the Court finds that there has been a violation of Art. 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 iudicata or the principles of finality of judgment n
cannot be allowed to whittle down or override the express constitu-
(1) [1981] 2 S.C.R.352.
724 SUPREME COURT REPORTS [198 JJ 2 S.C.R.

A tional mandate to the Supreme Court enshrined in Art. 32 of the
Constitution. In a recent decision in the case of Smt. Santosh Anand
v. Union of India & Ors.(') this Court has pointed out that the
concept of liberty has now been widened by Maneka Gandhi's(')
case where Art. 21 as construed by this Court has added new dimen-
sions to the varions features and concepts of. liberty as enshrined
B in Arts. 21 and 22 of the Constitution. For these reasons, therefore,
we overrule the preliminary objection taken by the respondents.

We now come to the merits of the cases. So far as the writ
petition filed in the High Court is concerned the only point taken . , ,,,,..
was that two documents referred to in the order of detention were -'---..
c not supplied to the detenu. The High Court rejected this contention
on the ground that the documents were merely referred to and not
relied on by the detaining authority and after having examined the
documents it found that the same were not relevant. With due res-
pect to the Judges we are unable to agree with the view taken by
them. In the first place, it was not open to the Court to have waded
D through the confidential file of the Government in order to fish out
a point against the detenu. Secondly, the question of relevnncc was
not to be decided by the Court but by the detaining authority which
alone had to consider the representation of the detenu on merits and
then come to the conclusion whether it should be accepted or rejected.
As the reasoning of the High Court, was legally erroneous the order
E of the High Court cannot be allowed to stand and is hereby quashed.

The matter does not rest here but two additional points which
have been taken in the writ petition before us are sufficient to void
the order of detention [passed against the detenu. In the first place,
it was submitted that the endorsement on the file produced before
F us by the Gove=ent shows that the documents concerned were
examined not by the detaining authority but by the Secretary and
there is nothing to show that the note or endorsement of the Secretary
was placed and approved by the demining authority. In
these circumstances, therefore, it must be held that there was no
G decision by the detaining authority that the documents were irrele-
vant. It was, however, submitted by Mr. Phadke that the documents
concerned were merely referred to in the grounds of detention but did
not form the basis of the subjective satisfaction of the detaining
authority at the time when it passed the order of detention. It was,
however, conceded by Mr. Phadke that before the grounds were
H served on the petitioner, the documents were placed before the detain-
(!) W.P. No. 1097/79 (decided on 31-10-1979).
(2) [1978] 2 S.C.R. 621.
KIRIT KUMAR v. GUJARAT (Fazal Ali, J.) - 725

mg authority and were, therefore, referred to in the grounds of deten- A
tion. It is manifest, therefore, that the subjective satisfaction could
only be asc<;rtained from or reflected in the grounds of the order of
detention passed against the detenu otherwise without giving the
grounds the mere subjective satisfaction of detaining authority would
make the order of detention incompiete and ineffective. Once the
documents are referred to in the grounds of detention it becomes the B
bounden duty of the detaining authority to suwly the same to the
detenu as part of the grounds or pari passu the grounds of detention.
There is no particular charm in the expressions 'relied on', 'referred
to' or 'based on' because ultimately all these expressions signify one
thing, namely, that the subjective satisfaction of the detaining autho--
rity has been arrived at on the documents mentioned in the grounds c
of detention. The question whether the grounds have been referred
to, relied on or based on is merely a matter of describing the nature
of the grounds. Even so in the case of Ram Chandra A. Kamat v.
Union of India & Ors.(') a three Judge bench decision of this Court
to which one of us (Fazal Ali, J.) was a party, clearly held that even D
the documents referred to in the grounds of detention have to be
furnished to the detenu. In this connection the Court observed as
follows : -
"If there is undue delay in furnishing the statements and
documents referred lo in the grounds of detention the right
to make effective representation is denied. The detention E
cannot be said to be according to the procedure prescribed
by law."
The same view was taken in a later decision of this Court in Shri
Tushar Thakker v. Union of India & Ors.(') where thls Court observ-
ed as follows : - F
"This Conrt has repeatedly held that the detenu has a consti-
tutional right under Article 22 ( 5) to be furnished with copies
of all the materials relied upon or referred to in the grounds
of detention, with reasonable expedition."
Thus, it is absolutely clear to us that whether the documents con- G
cerned are referred to, relied upon or taken into consideration by the
detaining authority they have to be supplied to the detenu as Part of
the grounds so as to enable the detenu to make an effective represen-
tation immediately on receiving the grounds of detention. This not
having been done in the present case the continued detention of the
petitioner must be held to be void. H
(1) [1980] 2 sec 211.
(2) [J9SOJ 4 sec 499.
726 SUPREME COURT REP()RTS [1981] 2 S.C.R.

A Lastly, the order of detention suffers from yet another serious
infirmity which makes the order of detention absolutely non est. The
respondents, in their counter-affidavit have categorically averred that
the order of detention was passed by the Home Minister, vide the •
counter affidavit of P.M. Shah at page 86 of the writ petition, where
the following averments have been made by Mr. Shah, Deputy
B Secretary to the Govermnen.t of Gujarat : -
"Referring to ground No. XXII paragraph 7 of the petition,
I say that the file relating to the detention of \he petitioner was
placed before the Home Minister of the State of Gujarat and
the Home Minister on careful consideration of the same passed
c the impugned order of detention."
The representation made by the detenu on 3-10-1980 has been
rejected ·on 14-10-1980 not by the Home Minister but by the Secre-
tary, thus, the representation has been rejected by an authority which
had no jurisdiction at all to consider or pass any orders on the repre-
sentation of the detenu. This, therefore, renders the continued deten-
D
tion of the petitioner void. In an identical case this Court in Smt.
Santosh Anand's case (supra.) observed as follows : -
"The representation was, therefore, not rejected by the detain-
ing authority and as such the constitutional safeguard under
Art. 22(5) as interpreted by this Court, cannot be said to
E have been strictly observed or complied with."
For the reasons given above, therefore, we allow this petition and
direct the detenu to be released forthwith. The special leave petition
is disposed of accordingly.

P.B.R. Petitwn allowed.