LexT.P. MOIDEEN KOYA versus GOVERNMENT OF KERALA AND ORS.
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A B c D T.P. MOIDEEN KOY A v. GOVERNMENT OF KERALA AND ORS. SEPTEMBER 30, 2004 [R.C. LAHOTI, C.J., G.P. MATHUR AND P.K. BALASUBRAMANY AN, JJ.] Constitution of India, 1950. Articles 22(5), 32, 136 and 226-Habeas corpus-Writ of-Res 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 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 F G H available at the earlier stage-Further, even if the plea raised by the 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 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- 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- 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- 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 of detention should not ordinarily be exercised- 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 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 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 A B c D· E 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 th
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