SRIKANT versus DISTRICT MAGISTRATE, BIJAPUR AND ORS.,

Citation: [2006] SUPP. 9 S.C.R. 312 · Decided: 22-11-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

A 
SRIKANT 
v. 
DISTRICT MAGISTRATE, BIJAPUR AND ORS., 
NOVEMBER 22, 2006 
B 
[ ARIJIT PASAYA T AND LOKESHWAR SINGH PANT A, JJ .] 
Constitution of India, 1950-Artic/e 226-Second Habeas Corpus 
r~ 1ition challenging the same detention order-Can be filed on fresh grounds 
. • taken in earlier petition-But if some surgical changes are made with 
C the context, substance and essence remaining the same, it cannot be said that 
challenge is .on new or fresh grounds-Karna/aka Prevention of Dangerous 
Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic 
Offenders and Slum Grabbers Act, 1985. 
The brother of Appellant was detained under the Karnataka Prevention 
D of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, 
Immoral Traffic Offenders and Slum Grabbers Act, 1985. The detention order 
was challenged by filing a petition for writ of Habeas Corpus before High 
Court. The detaining authority and other respondents resisted the challenge 
on the ground that Appellant had earlier moved the High Court by filing a 
E writ petition which had been dismissed and there was no challenge to the same. 
It was pointed out that the grounds taken in the Second Writ Petition were 
identical to those taken in the earlier writ petition and/or were available to be 
raised when the earlier writ petition was filed. Appellant however contended 
that the principle of the res judicata or constructive res judicata would apply 
only in the case of civil actions l:!nd proceedings and do not bar subsequent 
F writ petition in the matter of habeas corpus petition where personal liberty of 
citizen is involved. 
The High Court held that though successive writ petitions can be filed 
challenging the detention, yet it has to be shown that fresh grounds were 
involved and not the grounds which were already raised or \vere available to 
G be raised. Accordingly the writ petition was dismissed. Hence the present 
appeal. 
Disposing of the appeal, the Court 
HELD: 1.1. The question relating to res judicata in habeas corpus 
H 
3'12 
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SRIKANTv. DISTRICTMAGISTRATE.BIJAPUR [PASAYAT,J.] 
313 
petition was considered by this Court in several cases. The position that A 
emerges from a survey of various decisions is that the application of the 
doctrine of constructive res judicata is confined to civil actions and civil 
proceedings. This principle of public policy is entirely inapplicable to illegal 
detention and does not bar a subsequent petition for a writ of habeas corpus 
on fresh grounds, which were not taken in the earlier petition for the same B 
relief. [314-H; 317-E) 
1.2. 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, C 
substance and essence remaining the same, it cannot be said that challenge 
is on new or fresh grounds. 1317-F, GI 
TP. Moideen Koya v. Govt. of Kera/a and Ors., [2004) 8 SCC 106 and 
Lallubhat Jogibhai Patel v. Union of India, and Ors., AIR (1981) SC 728, 
relied on. 
Ghulam Sarwar v. Union of India and Ors., AIR (1967) SC 1335, 
referred to. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 120 I of 
2006. 
From the Final Judgment and Order dated 18-1-2006 of the High Court 
ofKarnataka at Bangalore in W.P. (I-1.C.) No. 118/2005. 
K.K. Mani for the Appellant. 
Anil K. Mishra, Vikrant Yadav, Sashidhar and Sanjay R. Hedge for the 
D 
E 
Respondents. 
F 
The Judgment of the Court was delivered by 
ARIJIT PASAYAT, J. Leave granted. 
Appellant calts in question legality of the judgment of the Division 
Bench of the Karnataka High Court dismissing the Habeas Corpus Petition G 
filed qubstioning detention of his brother Shri Shivalingappa (hereinafter 
referred to as the 'detenu') under the provisions ol the Karnataka Prevention 
of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, 
Immoral Traffic Offenders and Slum Grabbers Act, 1985 (in short the 'Act'). 
The detention order was passed on 26.5.2005 by the District Magistrate 
holding that the detenu was indulging in such activities which amounted to G 
314 
SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R. 
A immoral activities as detailed in the Act. The order of detention was approved 
by the State Government and the Advisory Board. The main ground of 
challenge in
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