Holding

A petition under Article 32 is not maintainable where a prior habeas corpus petition under Article 226 seeking the same relief has become final, as the bar of res judicata applies and the ground raised is not a new or changed circumstance.

Summary

The petitioner T.P. Moideen Koya challenged a detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, claiming it was illegal because he was already in custody and the order failed to consider that fact. The same issue had been raised earlier in a habeas corpus petition under Article 226 before the Kerala High Court, which was dismissed, and the dismissal was affirmed by a Special Leave Petition (Article 136) before this Court. The petitioner then filed a fresh writ petition under Article 32 seeking the same relief. The Supreme Court examined whether the bar of res judicata applied to the Article 32 petition, whether the circumstances had changed, and whether the detention order was valid. It held that the earlier final decision barred the new petition as the ground raised was not new or altered, and that the Supreme Court cannot review a decision rendered under Article 136 while hearing an Article 32 petition. Consequently, the petition was dismissed for lack of maintainability.

Issues considered

The applicability of the doctrine of res judicata to a petition under Article 32 when a similar habeas corpus petition under Article 226 has become final.
Whether a Special Leave Petition under Article 136, once dismissed, precludes a subsequent Article 32 petition on the same facts.
Whether the detention order under COFEPOSA is invalid because the detenu was already in custody and the order did not consider that fact.
Whether any change in circumstances or new ground justifies a fresh Article 32 petition.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(i)(iv)
Constitution of Indias. Article 136, s. Article 22(5), s. Article 226, s. Article 32

Subjects

habeas corpusres judicataArticle 32Article 226Article 136preventive detentionCOFEPOSAdetention orderfundamental rightsSpecial Leave PetitionSupreme Court

Judgment

A T.P. MOIDEEN KOY A
v.
GOVERNMENT OF KERALA AND ORS.

SEPTEMBER 30, 2004

B [R.C. LAHOTI, C.J., G.P. MATHUR AND
P.K. BALASUBRAMANYAN, JJ.]

Constitution of India, 1950.

Articles 22(5), 32, 136 and 226-Habeas corpus-Writ of-Res
c judicata-Bar of~Applicability
of-Habeas corpus petition under Art. 226
dismissed by High Court-SLP also dismissed-Writ petition under Art. 32
questioning the detention order of the petitioner filed-Maintainability of-
Held: 1f a writ of habeas corpus under Art. 226 is dismissed (whether by
a detailed order after considering the c~se on merits or by a non-speaking
D order) and the said decision becomes final due to non-filing of appeal under
Art. 136, it would still be open for a petitioner to file an independent petition
under Art. 32 seeking a writ a/habeas corpus-But if the said decision on
being challenged under Art. 136 attains finality, the same issue cannot be
re-agitated in a subsequent petition under Art. 32-However, a subsequent
E petition under Art. 32 is maintainable if the circumstances have changed or
on the grounds which were not available when the earlier petition was '
decided-The only plea raised in the present petition under Art. 32 had also
been raised in the writ petition under Art. 226 and also in the SLP-It is
neither a subsequent development nor a new plea which may not have been
available at the earlier stage-Further, even if the plea raised by the
F petitioner had not been considered in the SLP it cannot be a ground to
entertain a fresh petition under Art. 32-Hence, the present petition under
Art. 32 is not maintainable.

Articles 32 and 136-Writ petition-Res judicata-Principle-
Applicability of-Held: While hearing a petition under Art. 32, it is not
G
permissible for the Supreme Court either to exercise a power of review or
·some kind of an appellate jurisdiction over a decision rendered under Art.
136.

Articles 32 and 226-Writ petition-Res judicata-Principle-
H Applicability of-Petitioner filed a petition under Art. 226, which was
904
T.P. MOJDEEN KOY Av. GOVERNMENT OF KERALA 905

dismissed-The decision . attained finality since appeal not preferred- A
Subsequent petition filed under Art. 32 seeking same relief-Maintainability
of-:Held: The bar of res judicata or constructive res judicata would apply
to such a petition under Art. 32-Hence, such subsequent petition under Art.
32 not maintainable.

Articles 22(5)-Detention order-Against a person under custody-
B
Permissibility of-Held: In law there is no bar in passing a detention order
even against such a person if the detaining authority is subjectively satisfied
from the cogent material placed before him that the detenu is likely to be
released on bail-However, if there is no imminent possibility of his being
released therefrom, the power ofdetention should not ordinarily be exercised- c
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974, S. 3(i)(iv).

After the habeas corpus petition seeking quashing of the detention
order passed against the petitioner and for setting him at liberty had
been dismissed by the High Court, the matter was carried in appeal to D·
this Court by filing a petition under. Article 136 of the Constitution.
After leave was granted, the appeal was dismissed by a detailed judgment
wherein all the contentions raised laying challenge to the detention order
and also to the continued detention of the petitioner had been considered.
Thereafter the present petition was filed under Article 32 of the E
constitution for quashing of the detention order.

The only ground urged by the petitioner was that at the time of
service of the detention order, the petitioner was already in custody, but
the detaining authority had not applied his mind to the aforesaid fact
whether still there was any necessity to detain the petitioner. It was also F
urged that the said fact, namely, that the petitioner was already in
custody having not been mentioned in the detention order, the order of
detention passed against the petitioner was wholly illegal.

The following question arose before the Court: G
Whether the dismissal by this Court of the Special Leave Petition
preferred against the judgment and order of the High Court whereby
the habeas corpus petition filed by the wife of the petitioner seeking
quashing of the detention order and also his release had been dismissed,
would act as a bar to the maintainability of the present petition which H
906 SUPREME COURT REPORTS [200~] SUPP. 4 S.C.R.

A had been tiled under Article 32 of the Constitution?

Dismissing the petition, the Court

HELD : 1. The bar of res judicata or constructive resjudicata would
apply even to a petition under Article 32 of the Constitution ~here a
B 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,
th.is principle, namely, the bar of res judicata or principles analogous
c 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 o"r by a non-speaking order) and the
said decision is not challenged by preferring a Special Leave Petition
D 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. [916-D-E-F-G)

Ghulam Sarwar v. Union of India, AIR (1967) SC 1335, followed .
. E
Nazul Ali Molla v. State of West Bengal, (1969) 3 SCC 69 and Niranjan
Singh v. State of MP., AIR (1972) SC 2215, relied on.

Daryao v. State of U.P., AIR (1961) SC 1457; Virudhunagar Steel
Rolling Mills Ltd v. The Government of Madras, AIR (1968) SC 1196 ~md
F Mis. Trilokchand Motichand v. Commissioner Sales Tax, AIR SC 898, held
not applicable.

In Re: Hastings (2) {1958) 3 All ER 625 and In Re: Hastings (3)
[1959] 1 All ER 698, referred to.

G 2. It is well settled that a decision pronounced by a court of
competent jurisdiction is binding between the parties unless it is modified
or reversed by adopting a procedure prescribed by law. It is in the
interest of public at large that finality should attach to the binding
decisions pronounced by a court of competent jurisdiction and it is also ,.
H in the public interest that individuals should not be vexed twice over·
T.P. MOIDEEN KOY A v. GOVERNMENT OF KERALA 907

with the same kind of litigation. While hearing a petition under Article A
32 it is not permissible for this Court either to exercise a power of
review or some kind of an appellate jurisdiction over a decision rendered
in a matter, which has come to this court by way of a petition under
Article 136 of the Constitution. [917-B-C-D]
B
3. While hearing a special leave petition against the judgment of the
High Court dismissing a habeas corpus petition wherein a prayer has been
made to set a detenu at liberty, the Court would normally examine the same
grounds, namely, whether the detention order is inconformity with Article
22(5) of the Constitution and the provisions of the enactment under which
the detention order has been passed, whether the procedural safegu~rds C
have been observed and also whether the continued detention of the detenu
has not been rendered invalid on account of any breach of the duty cast
upon the authorities. A decision rendered by this Court in proceedings
under Article 136 of the Constitution which has attained finality, would
bind.the parties and the same issue cannot be re-agitated or reopened in a D
subsequent petition under Articl~ 32 of the Constitution. [917-D-E-F-G]

Daryao v. State of UP., AIR (1961) SC 1457, followed.

Bhagubhai Du/labhbhai Bhandari v. District Magistrate, AIR (1956).
SC 585, relied on. E

4. It is clarified that the subsequent petition under Article 32 of the
Co~stitution 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 F
maintainable on the grounds, which were not available when the earlier
a
petition was decided. To illustrate, 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 · G
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 file
a petition under Article 32 assailing his continued detention on th~ ground
... of inordinate and unexplained delay in consideration of his representation· H
908 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A or some procedural infirmity which may have occurred subsequent to
the decision of this Court. (917-G-H; 918-A-B-C)

5. The only plea raised in the present petition had also been raised
in the Special Leave Petition, which bad been filed earlier seeking
quashing of the detention order and the release of the petitioner. It is
B neither a subsequent development n~r a new plea, which may not have
been available at the earlier stage. If the plea raised has not been
considered in the judgment rendered by this Court, as submitted by the
petitioner, it cannot be a ground to entertain a fresh petition under
Article 32 of the Constitution. In the course of·a judgment, Courts
c normally deal with only such points, which are pressed and argued. If
0

a fresh petition under Article 32 is permitted on the grou nd that a
certain point has not been dealt with in the judgment, a party can file
as many petitions as he likes and take one or two new points every time.
Besides, if such a course was allowed to be adopted, the ~octrine of
finality of judgments pronounced by the Supreme Court would also be
D materially affected. Therefore, having regard to the facts pleaded and
the grounds raised, the present petition is not maintainable.
[918-G-H; 919-A-B-C-D]

6. The very object of passing a detention order being to prevent the
E person from acting in any manner prejudicial to mainten,a_iice of public
order or from smuggling goods or .dealing in smuggled goods etc., normally
there would be no requirement or necessity of passing such an order against
a person who is already in custody in respect of a criminal offence where
there is no immediate possibility of his being released. But in law there is no
bar in passing a detention order even against such a person ifthe detaining
F authority is subjectively satisfied from the material placed before him that
a detention order should be passed. (919-G-H; 920-A-B)

7.1. The principle is that if a person is in custody and there is no
imminent possibility of his being released therefrom, the power of
detention should not ordinarily be exercised. There must be cogent
G material before the authority passing the detention order for inferring
that the detenu was likely to be released on bail. [920-G-H; 921-A-B]

Rameshwar Shaw v. District Magistrate, AIR (1964) SC 334, followed.

Binod Singh v. District Magistrate, AIR (1986) SC 2090; Vijay Kumar
H v. State of J & K, [1982) 2 SCC 43, Ramesh Yadav v. District Magistrate,
T.P. MOIDEEN KOYAv. GOVERNMENT OF KERALA 909

(1985) 4 SCC 232 and Kamarunnissa v. Union of India, AIR (1991] SC A
1640, relied on.

7.2. However, the above principle can have no application here for
several reasons. The petitioner had already been released on bail by the
order of ACJM and the detention order was passed more than two
months thereafter when he was not in custody. As the petitioner
B
absconded, the detention order could not be served immediately and
proceedings under Section 7 of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 were initiated and
publication in the gazette was made. A device for surrendering was
adopted and the petitioner along with a surety appeared in the Court of C
ACJM where the surety withdrew his consent and the petitioner was
remanded in custody till a certain date. The authorities after coming to
know of the said fact served the detention order in jail. A detention
order, which has been validly passed, cannot be rendered invalid on
account of the own conduct of the detenu of absconding and evading D
service. That apart, the ACJM had passed the order of remand only till
a certain date and thereafter there was the possibility of his being released
.
or at any rate the petitioner could furnish another surety in place of the
one who had withdrawn his consent and thereafter he would have been
released from custody. The bail granted to the petitioner in the case
under the Customs Act had not been cancelled. This is not a case where E
the petitioner may have been taken into custody in connection with .
some serious criminal case where there may be no immediate possibility
of his getting bail. Therefore, even on merits, the ground urged in support
of the writ petition has no substance. (921-E, F, G, H; 922-A-B-C]

CRIMINAL ORIGINAL WRISDICTION : Writ petition (Criminal)
F
No. 69 of 2004.

Under Article 32 of the Constitution of India.

P.K. Manohar for the Appellant. G
A. Sharan, Additional Solicitor General, P.P. Khurana, T.L.V. Iyer,
Hemant Sharma, P. Parmeswaran (NP), B. Krishna Prasad (NP), John
Mathew and K.R. Sasiprabhu (NP) for the Respondents .
.... The Judgment of the Court was delivered by H
910 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A·. G.P. MATHUR, J. ~ l. This petition under Article 32 of the Constitution
has been filed for quashing and setting aside the detention order dated
2 l. l.2002 issued by Government of Kerala for detaining the petitioner T.P.
Moideen Koya under Section 3(i)(iv) of the Conservation of Foreign
Exchange and Prevention of Smugglilig Activities Act, 1974 (for short
B 'COFEPOSA') '

2. The residence of one Pulikuth Hamzath Abdussalam@Kunjumon
was searched on 18.8.2001 and ·gold biscuit of foreign origin weighing
4430.8 grams valued at Rs. 19,80,567, Indian currency worth Rs. 15,24,500
and .foreign currencies worth ]_ls. 1,39,360 were recovered and some
c incr!minating documents and a computer with accessories were also seized.
The statement of M. Mohammed Mustafa, a distant relative and employee
of Kunjumon which was recorded on 19.8.2001 and the seized documents
showed that petitioner Moideen Koy.a had dealt with 290 smuggled gold
biscuits valued at Rs. l.5. crores. He had transaction worth Rs. 18 crores with
D Kunjumon during the period l.8.2001 to 15.8.2001. The Government of
Kerala thereafter passed a d~tention order on 2 l. l.200 l for detaining the
petitioner under Section 3(i){iv) of the COFEPOSA. The petitioner absconded
and proceedings under Section 7(1) of the Act had to be 'initiated. He
surrendered before the court of Additional Chief Judicial Magistrate (Economic
Offences), Ernakulam on 4.9:2002 and was taken into custody. The detention
E order was then served upon him in jail on 12.9.2002. The wife of the
petitioner, namely, Safiya filed a habeas corpus petition being O.P. No. 2956
of 2002 in the Kerala High Court seeking quashing of the detention order
and for setting him at liberty. The High Court dismissed the habeas corpus
petition on l l.2.2003. Safia then preferred Special Leave Petition (Criminal)
F No. 1215 of 2003 (re-numbered as Criminal Appeal No. 913 of 2003 after
grant~of leave) in this Court which was also dismissed by a detailed order
··on 28.7.2003. The judgment is reported in [2003] 7 SCC 46. Thereafter, the
present writ petition has been filed under Article 32 of the Constitution for
quashing of the detention order.. The petition has, presumably, been filed t~
get out of the clutches of Smugglers & Foreign Exchange Manipulators
G (Forfeiture of Property) Act, 1976, as even before.filing of the petition, the
petitioner had served out the perio.d of detention and had been released.

3. Shri A Sharan, learned senior counsel for Union of India has raised
a preliminary objection regarding the maintainability of the present petition.
H Learned counsel has submitted that the exact issue raised before this Court
T.P. MOIDEEN KO)'A v. GOVERNMENT OF KERALA [MATHUR, J.] 911

in the Special Leave Petition filed against the judgment of the Kerala High A
Court was whether the detention order passed against the petitioner was valid
and proper having regard to the provisions ofCOFEPOSA and Article 22(5)
of the Constitution and this Court having upheld the validity of the detention
order and also the continued detention of the petitioner, the present petition
under Article 32 of the Constitution filed by him is not maintainable. Learned B
counsel for the peti~ioner has, on the other hand, submitted that as the
detention order passed against the petitioner violated his fundamental right,
his right to approach this Court by way of a petition under Article 32 is
guaranteed under the Constitution and can not be taken away by any technical
consideration.
c
4. The question which requires consideration is whether the dismissal
by this Court of the Special Leave Petition preferred against the judgment
and order dated l l .2 .2003 of Kerala High Court whereby the habeas corpus
petition filed by the wife of the petitioner seeking quashing of the detention
order and also his release had been dismissed would act as a bar to the D
maintainability of the present petition which has been filed under Article 32
of the Constitution. Part III of the Constitution guarantees a set offundamental
right to all its citizens and some of these rights are available to even non-
citizens. Clause (1) of Article 32 provides that the right to move the Supreme
Court by appropriate proceeds for the enforcement of the rights conferred by
Part III is guaranteed and clause (2) provides that the Supreme Court shall E
have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part. The bar of res judicata against a petition filed under
Article 32 of the Constitution on the same facts and praying for the same or F
similar relief where a petition filed under Article 226 of the Constitution had
been dismissed by the High Court and the order had become final has been
considered in several decisions of this Court. This question was examined
in considerable detail by a Constitution Bench in Daryao and Others v. State
of U.P. and Others, AIR (1961) SC 1457. Here, the petitioners had filed suit
for ejectment under Section 180 of the U.P. Tenancy Act, 1939 which was G
decreed by the trial court and the decree was affirmed by the Additional
Commissioner in appeal, but the Second Appeal preferred by the contesting
respondent was allowed by the Board of Revenue and the suit was dismissed.
The petitioners then filed a writ petition under Article 226 of the Constitution
before the Allahabad High Court, which was dismissed on 29.3.1955 as not H
912 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A pressed as the relevant provisions of law, namely, Section 20 of the U.P.
Zamindari Abolition and Land Reforms (Amendment) Act had been earlier
interpreted and decided by a Full Bench against the contentions advanced on
behalf of the petitioners. Section 20 was later on amended by Act XX of 1954
and thereafter the writ petition under Article 32 of the Constitution was filed
on 14.3.1956. Gajendragadkar, J. who spoke for the Court highlighted the
B
importance of Article 32 of the Constitution by observing that there can be
no doubt that fundamental right guaranteed by Article 32(1) is a very
important safeguard for the protection of the fundamental rights of the
citizens, and as a result of the said guarantee Supreme Court has been
entrusted with the solemn task of upholding the fundamental rights of the
c citizens of this country. As to what should be the approach of the Court in
entertaining the plea of res judicata against a petition under Article 32 of the
Constitution was summarized in the following manner in paragraph 8 of the
report :

D " ............ Thus the right given to the citizen to move this Court by
a petition under Art. 32 and claim an appropriate writ against the
unconstitutional infringement of his fundamental rights itself is a
matter of fundamental right, and in dealing with the objection based
on the application of the rule of res judicata this aspect of the matter
has no doubt to be borne in mind."

After a detailed consideration of the matter, the following principle was
enunciated in paragraph 19 of the report and the relevant part thereof reads
as under:

F " .... We hold that if a writ petition filed by a party under Art. 226
is considered on the merits as a contested matter and is dismissed
the decision thus pronounced would continue to bind the parties
unless it is otherwise modified or reversed by appeal or other
appropriate proceedings permissible under the Constitution. It would
not be open to a party to ignore the said judgment and move this
G Court under Art. 32 by an original petition made on the same facts
and for obtaining the same or similar order or writs. If the petition
filed in the High Court under Art. 226 is dismissed not on the merits
but because of the !aches of the party applying for the writ or
because it is held that the party had an alternative remedy available
H to it, then the dismissal of the writ petition would not constitute a
T.P. MOIDEEN KOYA v. GOVERNMENT OF KERALA [MATHUR, J.] 913

bar to a subsequent petition under Art. 32 except in cases where and A
ifthe facts thus found by the High Court may themselves be relevant
even under Art. 32. If a writ petition is dismissed in limine and' an
order is pronounced in that behalf, whether or not the dismissal
would constitute a bar would depend upon the nature of the order.
If the order is on the merits it would be a bar, if the order shows B
that the dismissal was for the reason that the petitioner was guilty
of !aches or that he had an alternative remedy it would not be a bar,
except in cases which we have already indicated. It the petition is
dismissed in limine without passing a speaking order then such
dismissal cannot be treated as creating a bar of res judicata. It is true
that, prima facie, dismissal in limine even without passing a c
speaking order in that behalf may strongly suggest that the Court
took the view that there was no substance in the petition at all; but
in the absence of a speaking order it would not be easy to decide
what factors weighed in the mind of the Court and that makes it
difficult and unsafe to hold that such a summary dismissal is a D
dismissal on merits and as such constitutes a bar of res judicata
against a similar petition filed under Art. 32. If the petition is
dismissed as withdrawn it cannot be a bar to a subsequent petition
under Art. 32, because in such a case there was been no decision
on the merits by the Court .......... "
E
5. In another decision by a Constitution Bench in Devi/al Modi v. Sales
Tax Officer, Rat/am and Others, AIR (1965) SC 1150 the petitioner
challenged the validity of sale tax imposed upon him for a particular year
by filing a petition under Article 226 of the Constitution which was rejected
on merits. In the appeal preferred against the said decision in the Supreme F
Court the assessee sought to raise two additional grounds which was not
permitted and the appeal was dismissed on merits. Thereafter the assessee
filed a second writ petition in the High Court challenging the same assessment
order and also raising the grounds which had not been earlier permitted by
the Supreme Court. The High Court dismissed the writ petition and thereafter
the matter was taken in appeal to the Supreme Court. Gajendragadkar, C.J., G
after referring to the case of the Daryao v. State of UP. (supra) held as under,
in paragraph l 0 of the report :

"As we have already mentioned, though the Courts dealing
with the questions of the infringement of fundamental rights must H
914 SUPREME COURT REPORTS [2004] SUPP. 4. S.C.R.

A consistently endeavour to sustain the said rights and should strike
down their unconstitutional invasion, it would not be right to ignore
the principle of res judicata altogether in dealing. with.writ petitioners
filed by citizens alleging the contravention of their fundamental
rights. Considerations of public-policy cannot be ignored .fu such
cases, and the b·asic doctrine that judgments pronounced by this
B
Court are binding and must be regarded as final between the parties
iii respect of matt«!!rs covered by them must receive due consideration."

6. In Virudhunagar Steel Rolling.Mills Ltd. v. The 9overnment of
Madras; AIR (1968) SC 1196, which is also a decision by a Constitution
c Bench, it was held that where a writ petition under Artic~e 226 of· the
Constitution is disposed of on merits and the order of dismissal of the petition
is a speaking order that would amount to res judicata and ':Vould bar a petition
under Article 32 on the same facts irrespective of whether notice was issued
to the other side or not before such a decision was given.
D
7. Examining a similar contention Hidayatullah C.J. in his separate
opinion in Mis. Tilokchand Motichand and Others v. H.B. Munslii,
Commissioner of Sales Tax, Bombay a11d Another, AIR (1970)" SC 898
(a decision rendered by a Constitution Bench) observe~ that Article 32 gives
the right tO move the Supreme Court by appropriate proceedings for
E enforcement of the rights conferred by Part III of the Constitution. The
provision merely keeps open the doors or this Court, in much the same way,
as it used to be said, the doors of the Chancery Court were always open. The
State cannot place any hindrance in the way of ai:i aggrieved person seeking
to approach this. Court. But the gulfrantee goes no fuJ1her at least on the terms
F of Artide 32. Having reached this Court,_ the extent or manner of interference
is for the Court to decide. In pan1graph 6 ·ofthe report, it was observed as
under:

"Then again this Court refrains from acting under Article 32 if the
party has already .moved the High Court under Article 226. This
G constitutes a comity between the Supreme Court and the High Court.
Similarly, when a party had already moved the High Court with a
similar complaint and for the same reliefand failed, this Court insists
on an appeal to be brought before it and does not allow fresh
proceedings to be stated. In this connection, the principle of res
H judicata has been applied, although the expression is somewhat
T.P. MOIDEEN KOYA v. GOVERNMENT OF KERALA [MATHUR, J.] 915

inapt and unfortunate. The reason of the rule no doubt is public A
policy which Coke summarized as "interest reipublicae res judicatas
non rescindi" but the motivating factor is the existence of another
parallel jurisdiction in another Court and that Court having been
moved, this Court insists on bringing its decision before this Court
~~~~ B
8. But, the bar of res judicata has not been applied in petitions for
habeas corpus, as for historical reasons, the writ for habeas corpus has been
treated as standing in a category by itself. In Daryao v. State of UP. (supra),
the legal position in England as of now has been cons!dered in paragraph 17
of the report, and after referring to Re Hastings (No. 2), [1958] 2 All E.R.625 C
and Re Hastings (No. 3), [1959] 1 All. E.R. 698, it was observed that even
in regard to habeas corpus petition it is now settled in England that an
applicant cannot move one Divisional Court of the Queen's Bench Division
after another.
D
9. This question was examined in considerable detail by a Constitution
Bench in Ghulam Sarwar v. Union ofIndia and Others, AIR (1967) SC 1335.
In this case the petitioner who was detained under Section 3(2)(g) of the
Foreigners Act, 1946 filed 9 petition for issuing a writ habeas corpus which
was _dismissed by a learned Single Judge of the High Court and the said
judgment was allowed to become final. Thereafter the petitioner filed a writ E
petition under Article 32 of the Constitution in the Supreme Court rraying
that he may be set at liberty. Subba Rao, CJ, after referring to th~ Daryao
v. State of UP. (supra); in Re Hastings (2), [1958] 3 All E.R. 625, in Re
Hastings 3, [1959] 1 All E.R. 698 and some other English and American
cases held, as under : F
"The principle of application of res judicata is not applicable in Writ
of Habeas Corpus, so· far as High Courts are concerned. The
principles accepted by the English and American Courts, viz., that
res judicata is not applicable in Writ of Habeas Corpus holds good.
But unlike in England, in India the person detained can file original G
petition for enforcement of his fundamental right to liberty before
a Court other than the High Court, viz., the ·supreme Court. The
order of the High Court in such a case will not be res judicata as
held by the England and the American Courts because it is either
not a judgment or because the principle of res judicata is not H
9I6 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A applicable to a fundamentally lawless order."

IO. In Nazul Ali Molla Etc. v. State of West Bengal, [1969] 3 SCC 698
the petitioners had challenged their detention under Section 3(2) of the
Preventive Detention Act by filing a writ petition under Article 226 of the
B Constitution before the Calcutta High Court, but the petition was dismissed.
Thereafter they filed a writ petition under Article 32 of the Constitution in
this Court. The objections raised by the State regarding maintainability of the
petition was repelled and it was held that a petition under Article 32 of the
Constitution for the issue of writ of habeas corpus would not be barred on
the principle of res judicata if a petition for a similar writ under Article 226
c of the Constitution before the High Court has been decided and no appeal
is brought up to the Supreme Court against that decision. SimHar view has
been taken in Niranjan Singh v. State of Madhya Pradesh, AIR (I972) SC
22I5.

D I I. The principle which can be culled out from this 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
E 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
detentiion 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
F 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 I 36 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.

G I2. However, the position here is quite different. After the habeas
·corpus petition seeking quashing of the detention order passed against the
petitioner and for setting him at liberty had been dismissed by the Kerala
High Court, the matter was carried in appeal to this Court by filing a petition
under Article I 36 of the Constitution. After leave was granted, the appeal
H was dismissed by a detailed judgment wherein all the contentions raised
T.P. MOIDEEN KOYA v. GOVERNMENT OF KERALA [MATHUR, J.) 917

laying challenge to the detention order and also to the continued detention A
of the petitioner had been considered. The question is whether, even in such
circumstances, a subsequent petition under Article 32 of the Constitution
seeking to challenge the same detention order would be maintainable.

13. It is well settled that a decision pronounced by a Court of competent B
jurisdiction is binding between the parties unless it is modified or reversed
by adopting a procedure prescribed by law. It is in the interest of public at
large that finality should attach to the binding decisions pronounced by a
court of competent jurisdiction and it is also in the public interest that
individuals should not be vexed twice over with the same kind of litigation.
While hearing a petition under Article 32 it is not permissible for this Court C
either to exercise a power of review or some kind of an appellate jurisdiction
over a decision rendered in a matter which has come to this Court by way
of a petition under Article 136 of the Constitution. The view taken is
Bhagubhai Dullabhbhai Bhandari v. District Magistrate, AIR (1956) SC 585
that the binding nature of the conviction recorded by the High Court against D
which a Special Leave Petition was filed and was dismissed can not be
assailed in proceedings taken under Article 32 of the Constitution was
approved in Daryao v. State of U.P. (supra) (see para 14 of the report).

14. While hearing a special leave petition against the judgment of the
High Court dismissing a habeas corpus petition wherein a prayer has been E
made to set a detenu at liberty, the Court would normally examine the same
grounds, namely, whether the detention order is in conformity with Article
22(5) of the Constitution and the provisions of the enactment under which
the detention order has been passed, the procedural safeguards have been
observed and also whether the continued detention of the detenu has not been F
rendered invalid on account of any breach of the duty cast upon the
authorities. A decision rendered by this Court in proceedings under Article
136 of the Constitution which has attained finality, would bind the parties
and the same issue cannot be re-agitated or re-opened in a subsequent petition
under Article 32 of the Constitution.
G
15. 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 H
918 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A a
petition was decided. To illustrate, 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).
B If such a petition is dismissed by the High Court and the judgment is affinned
by this Court in a special leave petition under Article 136 of the Constitution,
it would always be open to him to file· a petition under Article 32 assailing
his continued detention on the ground of inordinate and unexplained delay
in consideration of his representation or s~m~ proc~durai infinnity which
may have occurred subsequent to .the decision of this Court.
.
c . .. ~

16. In the light to the principle discussed above the contention of the
petitioner may b~ examined. The only ground urged by learned counsel for J'

the petitioner is that at the time of service of the detention order, the petitioner
was already in custody, but the detaining authority had not applied his mind
D to the afores~id fact whether still there was any necessity to detain the
petitioner. It is also urged that the said fact, namely, that the petitioner was
already in custody having not been mentioned in the detention order, the
order of detention passed against the petitioner is wholly illegal. In support
of this submission reliance has been placed upon Binod Singh v. District
Magistrate, AIR (1986) SC 2090, wherein it has been held that if at the time
E of the passing of the detention order, there is no proper .consideration of the
fact that the detenu was already in custody or that there was any real
possibility of his release, the power of pre-emptive deteniio.n should not be
exercised. This plea was raised in the habeas corpus petition which was filed
in the Kerala High Court.. The High Court examihedthe pl~a in.fonsiderable
F detail and rejected "the saine by the j~dgment and order dated i 1.2.2003.
Simiiar plea was also taken in Special Leave Petition (Criminal)No. 1215
of2003 (vide para Nos. 2.3 and 2.4 and ground Nos. Hlo L). In fact, in para
7 of the present Writ Petition it is stated that a contention was raised and was
specifically argued before this Court in the Special Leave Petition that the
order of detention has been vitiated on account of the fact that the same was
G served upon the detenue while he was in jail, but the fact of his being in
custody was not reflected in the 'detention order. However, a grievance is
raised that the said contention has not been dealt with or· decided in the
judgment of this Court. It is, therefore, apparent that the only plea raised in
the present petition had also been raised in the Special Leave Petition which
H had been filed earlier seeking quashing of the detention order and the release
T.P. MOIDEEN KOYA v. GOVERNMENT OF KERALA [MATHUR, J.] 919
•
of the petitioner. It is neither a subsequent development nor a new plea which A
may not have been available at the earlier stage. If the plea raised has not
been considered in the judgment rendered by this Court on 28.7.2003 in
Special Leave Petition (Criminal) No. 1215 of 2003, as submitted by the
petitioner, it cannot be a ground to entertain a fresh petition under Article
32 of the Constitution on the principles discussed above. In the course of B
judgment, Courts normally deal with only such points which are pressed and
argued. If fresh petition under Article 32 is permitted on the ground that
certain point has not been dealt with in the judgment, a party can file as many
petitions as he likes and take one or two new points every time. Besides, if
such a course was allowed to be adopted, the doctrine of finality of judgments
pronounced by the Supreme Court would also be materially affected. C
Therefore, having regard to the facts pleaded and the grounds raised, the
present petition is not maintainable.

17. Even though we have held above that looking to the nature of the
plea raised, the present writ petition under Article 32 of the Constitution is D
not maintainable, still the contentions raised may be examined on merits.

18. The petitioner was granted bail in the case under Customs Act by
the Additional Chief Judicial Magistrate (Economic Offences), Emakulam
(for short 'ACJM') in O.R. No. 3 of2001 vide order dated 17.11.2001. The
detention order was thereafter passed by the .Government of Kerala on E
21.1.2002 and at that time the petitioner was a free person and was not in
custody. The detention order could not be served on the petitioner as he
absconded. Thereafter, proceedings under Section 7 of COFEPOSA were
initiated and notification was published in the official gazette on 1.4.2002
directing the petitioner to surrender. Coercive steps were also taken to secure F
his arrest. The petitioner. than appeared before the Court of ACJM on
4.9.2002 along with one of his sureties who submitted an application that he
was no longer willing to be a surety. The A.CJM remanded the petitioner to
judicial custody till 17.9.2002. The detention order was then served upon .the
petitioner in jail on 12.9.2002.
G
19. The very object of passing a detention order being to prevent the
person from acting in any manner prejudicial to maintenance of public order
or from smuggling goods or dealing in smuggled goods etc., normally there
would be no requirement or necessity of passing such an order against a
person who is already in custody in respect of a criminal offence where there H
920 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
.
-' A is no immediate possibility of his being released. But in law there is no bar
in passing a detention order even against such a person if the detaining
authority is subjectively satisfied from the material placed before him that
a detention order should be placed. A Constitution Bench in Rameshwar
Shaw v. District Magistrate, AIR (1964) SC 334 held as under :
B "As an abstract proposition of law, there may not be any doubt that
Section 3(1)(a) does not preclude the authority from passing an
order of detention against a person whilst he is in detention or in
jail, but the relevant facts in connection with the making of the order
may differ and that may make a difference in the application of the
c principle that a detention order can be passed against a person in
jail."

20. In Vijay Kumar v. State of J&K, [1982] 2 SCC 43, it was
held:

D "If the detenu is already in jail charged with a serious offence, he
is thereby prevented from acting in a manner prejudicial to the
security of the State. Maybe, in a given case there yet may be the
need to order preventive detention of a person already in jail. But
in such a situation the detaining authority must disclose awareness
E of the fact that the person against whom an order of preventive
detention is being made is to the knowledge of the authority already
in jail and yet for compelling reasons a preventive detention order
needs to be made."

21. In Binod Singh v. District Magistrate (supra) there were several
F criminal cases against the detenue including a murder case in which
investigation was in progress. At the time when the detention order was
passed, the detenue had not surrendered in respect of the criminal charge. The
detention order was served soon after he surrendered in the murder case. The
Court then helg that from the affidavit of the District Magistrate it did not
appear that either the prospect of the immediate release of the detenu or other
G factors which could justify the detention of a person already in custody, were
properly considered in the light of the principles laid down in Rameshwar
Shaw v. District Magistrate, AIR (1964) SC 334 and Ramesh Yadav v.
District Magistrate, [1985] 4 SCC 232. The principle is that if a person is
in custody and there is no imminent possibility of his being released
H therefrom, the power of detention should not ordinarily be exercised. There
T.P. MOIDEEN KOYA v. GOVERNMENT OF KERALA [MATHUR, J.] 921

must be cogent material before the authority passing the detention order for A
inferring that the detenu was likely to be released on bail. In Kamarunnissa
v. Union of India, AIR (1991) SC 1640, after review of all the earlier
decisions, the law on the point was enunciated as under in para 13 of the
report :
B
"13. From the catena of decisions referred to above it seems clear
to us that even in the case of a person in custody a detention order
can validly be passed (I) if the authority passing the order is aware
of the fact that he is actually in custody; (2) if he has reason to
believe on the basis of reliable material placed before him (a) that
there is a real possibility of his being released on bail, and (b) that C
on being so released he would in all probability indulge in prejudicial
activity and (3) if it is felt essential to detain him to prevent him
from so doing. If the authority passes an order after recording his
satisfaction in this behalf, .such an order cannot be struck down on
the ground that the proper course for the authority was to oppose D
the bail and if bail is granted notwithstanding such opposition to
question it before a higher Court. What this court stated in the case
of Ramesh Yadav, AIR (1986) SC 315 (supra) was that ordinarily
a detention order should not be passed merely to pre-empt or
circumvent enlargement on bail in case where a person is in custody,
if the facts and circumstances of the case so demand, resort can be E
had to the law of preventive detention ......... "

22. However, the above principle can have no application here for
several reasons. The petitioner had already been released on bail by the order
of ACJM on 17 .11.200 l and the detention order was passed more than two F
months thereafter on 21.11.2002 when he was not in custody. As the
petitioner absconded, the detention order could not be served immediately
and proceedings under Section 7 of COFEPOSA were initiated and publication
in gazette was made on 1.4.2002. A device for surrendering was adopted and
the petitioner along with a surety appeared in the Court of ACJM where the
surety withdrew his consent and the petitioner was remanded in custody till G
17.9 .2002. The authorities after coming to know of the said fact served the
detention order in jail on 12.9.2002. A detention order which has been validly
_ passed cannot be rendered invalid on account of the own conduct of the
detenu of absconding and evading service. That apart, the ACJM had passed
the order of remand only till 17 .9 .2002 and thereafter there was possibility H
922 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A of his being released or at any rate the petitioner could furnish another surety
in place of one who had withdrawn his consent and thereafter he would have
been released from custody. The bail granted to the petitioner in the case
under Customs Act had not been cancelled. This is not a case where the
petitioner may have been taken into custody in connection with some serious
B criminal case where there may be no immediate possibility of his getting bail.
Therefore, even on merits, .the ground urged in support of the writ petition
has no substance.

23. For the reasons discussed above, the writ petition lacks merit and
is hereby dismissed. ~
c
v.s.s. Petition dismissed.