Dismissed

Rashid @ Jagga Shaukat v. the Commissioner of Police and Ors.

Bombay HC14 Mar 2016WP/4416/2015

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a second writ petition challenging a detention order under the Maharashtra MPD&A Act. The court held that the ground of delay in execution was known at the time of the first petition and thus not a fresh ground, barring the second petition under principles limiting successive approaches.

What did the court decide?

The writ petition was dismissed and the rule was discharged.

Rashid @ Jagga Shaukat Vs the Commissioner of… — Pension and Retirement Benefits | Bombay HC (2016)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 4416 OF 2015

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Rashid @ Jagga Shaukat Hussein Sayyed

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.. Petitioner

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Versus

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The Commissioner of Police, Mumbai and Others

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.. Respondents

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Appearances Mr. Udaynath Tripathi Advocate for the Petitioner Mr. J.P. Yagnik APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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SMT. ANUJA PRABHUDESSAI, JJ.

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DATE : MARCH 14, 2016.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

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Heard both sides.

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Rule. By consent, Rule made returnable forthwith.

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This petition under Article 226 of the Constitution of

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India seeks to challenge the order of detention under Section

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3 of Maharashtra Prevention of Dangerous Activities of

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Slumlords, Bootleggers, Drug-offenders and Dangerous

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Persons Act, 1981 ('M.P.D.A. Act' for short) passed against the detenu. The petitioner had earlier filed Writ Petition No. 2640 of 2015 challenging the validity of the very same detention order. The said Writ Petition came to be dismissed by the Division Bench of this Court by order dated 11.8.2015 after hearing the learned counsel for the petitioner and the learned APP. The present petition is on the footing that

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fresh and new grounds of attack against the order of detention have been raised in the present petition and that successive petition on such fresh and new grounds is not barred on the principle of res-judicata or constructive resjudicata and hence, this petition ought to be decided on its own merit. The point in this petition thus concerns the permissibility of successive petition under Article 226 of the Constitution of India challenging an order of detention and the parameters to be considered by the writ Court while entertaining such a petition.

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Two grounds have been raised in the present petition.

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The first ground is in relation to delay in considering the representation and the second ground is delay in executing the order of detention. As far as, the first ground is concerned, Mr. Tripathi, learned Advocate for the petitioner states that he is not pressing the said ground and he is only pressing the second ground i.e delay in executing the order of detention. The learned APP however raised a preliminary

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objection that the second ground is not a new ground and hence, a Writ Petition raising such a ground is not maintainable.

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5. It is to be noted that after extensive hearing, the Writ

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Petition which was earlier filed by the detenu i.e Writ Petition

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No. 2640 of 2015 was dismissed by the Division Bench of this

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Court. Mr. Tripathi submitted that the second ground i.e delay in executing the order of detention was not raised in

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the earlier petition and hence, not considered by this Court

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while deciding the earlier Writ Petition. He submitted that

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this ground of delay in executing the order of detention is a

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new ground and hence is not barred by principles of resjudicata or constructive res-judicata. In support of his contention that the second petition by a detenu is permissible against the very same detention order, he has placed reliance on a decision of the Supreme Court in the case of Shrikant Vs District Magistrate, Bijapur & Ors.^1.

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Mr. Tripathi relied on the observations in paragraph 8 of

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the decision in the case of Shrikant (supra) which is as

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under:-

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"8. Whether any new ground has been taken, has to be decided by the court dealing with the application and no hardand-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, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds."

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(Emphasis supplied)

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Thus, on reading of the decision in the case of Shrikant

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(supra), it is seen that when there is new ground, a Writ Petition can be entertained. The Concise Oxford English Dictionary (Eleventh Edition, Revised) states that "new"

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1 (2007) 1 SCC 486

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means for the first time and not existing before. Encyclopaedic Law Lexicon by Justice C.K. Thakker 2013 Second Edition states that "new" means not existing before: now made, or brought into existence, for the first time. It also means something which was not existing before or brought into existence for the first time, not previously known and now known for the first time.

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The ground raised by the petitioner in this second petition is that there was delay in executing the order of detention. This is a ground which was known to the petitioner at the time of filing his first petition i.e Writ Petition No. 2640 of 2015. This is not something that he discovered for the first time at the time of filing of the present petition. It cannot be said that this is a ground which was not existing when he filed the first petition. It cannot be said that this ground was not existing before or was not previously known to the petitioner and it became known to

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the petitioner for the first time only at the time of filing his

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second petition and was not known to him when he filed his

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first petition. On looking to the facts of this case stated above by us, it cannot be said that this ground of delay in execution which is raised in ground (b) of the present petition is a new ground, hence, as such, this petition is not maintainable.

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Thereafter, Mr. Tripathi placed reliance on the decision

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of the Supreme Court in the case of Baby Devassy Chully

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@ Bobby Vs. Union of India & Ors.² to support his

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contention that a second petition is maintainable. He relied

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on the observations in the said decision which finds place in

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paragraph 21 which is as under:-

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" In view of the same and in the light of the additional grounds raised and also of the fact that the issue relates to personal liberty of a citizen, we reject the objection of the respondents and hold that the present appeal cannot be dismissed on the grounds of res judicata."

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However, these observations cannot be read in

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isolation and the facts of the case have to be seen. In this

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case, Writ Petition was filed directly before the Supreme 2 (2013) 4 SCC 531

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Court under Article 32 of the Constitution of India against the order of detention. This Writ Petition came to be dismissed. Thereafter, the petitioner filed a Writ Petition under Article 226 against the same order of detention before the High Court. The said Writ Petition came to be dismissed. Then, the petitioner filed an appeal against the order of High Court before the Supreme Court and the question was whether the

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dismissal of the earlier Writ Petition under Article 32 would operate as a bar to the appeal preferred by the detenu against the order of the High Court dismissing his Writ Petition. Before the Supreme Court made the observations which were relied upon by Mr. Tripathi, it has reproduced paragraph 10 of the decision of the Supreme Court in the

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case of Kirit Kumar Chaman Lal Kundaliya Vs. Union of

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India³ which are as under:-

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"10....... 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 allowed to be agitated again and again. Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. In the instant case, the High Court decided the petition of the detenu under Article

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3 (1981) 2 SCC 436

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226 which was a discretionary jurisdiction whereas the jurisdiction to grant relief in a petition under Article 32 filed in the Supreme Court is guaranteed by the Constitution and once the court finds that there has been a violation of Article 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 judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution."

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(emphasis supplied)

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Thus, the Supreme Court has made these observations

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on the basis that when there are two forums and the two forums have an independent jurisdiction and considering that the powers of the Supreme Court under Article 32 of the Constitution of India are not discretionary whereas powers under Article 226 exercised by the High Court are discretionary in nature, then the doctrine of res judicata is not applicable. Thus, these observations were made in the light of the powers of the Supreme Court under Article 32 and in view of the fact that there were two separate forums having independent jurisdiction. However, this Court had dismissed the earlier Writ Petition under Article 226 of Constitution of India and now a fresh petition has been

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preferred before this Court under Article 226 of the Constitution of India. Thus, the forum is also the same as well as the jurisdiction of both the Courts when the earlier Writ Petition was preferred and the present Writ Petition has been preferred is also the same. Moreover, this Court does not have powers under Article 32. Thus, this decision also would be of no help to the petitioner.

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9. The Supreme Court in the case of Lallubhai Jogibhai

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Patel Vs Union of India & Ors.⁴ has observed that in

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England, no second petition for writ of habeas corpus can be brought in the same court except on fresh evidence. Thereafter, in paragraph 7 of this decision, the Supreme Court quoted with approval the decision in the case of

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Calcutta Gas Co. (Proprietary) Ltd Vs State of W.B.⁵

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wherein it was observed thus:-

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" No second petition for writ of habeas corpus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court. However, a second such petition will lie when a fresh and a new ground of attack against the legality of

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4 (1981) 2 SCC 427

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5 AIR 1962 SC 1044

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detention or custody has arisen after the decision on the first petition, and (also) where for some exceptional reason a ground has been omitted in an earlier petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice."

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Thus, here also the Supreme Court has stated that the

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second petition will lie when there is new and fresh ground of attack. In the present case, the ground taken by the petitioner of delay in execution of the detention order was known to the petitioner when the detention order dated 17.4.2015 was served on him. It was served on him much prior to filing the first petition. Thus, it was not a ground which arose after the first petition of the detenu was dismissed. In such case, it cannot be said to be a fresh and new ground. Moreover, no reason, leave alone exceptional reason is stated as to why this ground was not taken in the earlier writ petition, hence, in this view of the matter also, the second petition cannot be entertained.

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Learned APP relied on the decision of this Court in the

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case of Deepesh Mahesh Zaveri Vs Union of India &

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Ors.⁶ wherein it is held that only in two exceptional

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circumstances, second petition would lie i.e - (1) fresh and new ground of attack against the legality of the detention or custody has arisen after the decision of the first petition; and

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(ii) where for some exceptional reason ground has been omitted in the earlier petition. In such situations, the Court will hear the second petition on such a ground for ends of

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justice. We may reiterate that the only ground urged before

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us in the second petition is not something which is a fresh and new ground of attack which has arisen after the decision of the first petition. The petitioner could very well have raised this ground in the first petition itself. No exceptional reason has been pointed out as to why this ground was omitted in the earlier petition.

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11. Thereafter, reliance was placed by the learned APP on

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the decision of this Court (Aurangabad Bench) in the case of

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Rushikesh Tanaji Bhoite Vs State of Maharashtra &

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Ors.⁷ . In this decision, it was held that the second petition

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6 1998 (2) Mh.L.J. 634

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7 2012(1) Bom..C.R (Cri) 344

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would lie when a fresh and new ground as to legality of

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detention has arisen after decision on first petition or for an exceptional reason ground had been omitted in first petition. Similar view was taken by this Court in the case of Khushbu Sandeep Jain (Smt) & Anr. Vs. State of Maharashtra &

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Ors.⁸

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In the present case, it is seen that the ground which is sought to be relied on in this petition was very much available to the detenu when the earlier petition was filed. No reason has been pointed out much less an exceptional reason as to why this ground was not urged in the earlier petition. As stated earlier, the ground taken in the present petition cannot be said to be a new ground. In this view of

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the matter, we are not inclined to entertain this petition. Hence, the Writ Petition is dismissed. Rule discharged.

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[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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8 2014(3) Bom.C.R. (Cri) 636

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Rashid @ Jagga Shaukat v. the Commissioner of Police and Ors.

Case brief

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Rashid @ Jagga Shaukat v. the Commissioner of Police and Ors.

Case brief

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