Arguments

ISSUE 1: CAN DETENU FILE 2 ND PETITION FOR HABEAS CORPUS AFTER

DISMISSAL OF FIRST PETITION

If I am to articulate Issue 1 in the way we understand, it would mean deciding the question of
whether constructive res judicata applies only in civil matters or it applies in habeas corpus
petitions also. The two primary judgements which the petitioners are citing in their favour are
Daryao v. State of U.P. and Ghulam Sarvar v. Union of India. We will show how these are
not applicable in the present case.

Res judicata applies in writ petitions as well. The Hon’ble Supreme Court made this
observation the case of P. Bandopadhya vs. Union of India

ISSUE 2: WHETHER 1ST PETITION & GROUNDS NOT TAKEN OPERATE AS

CONSTRUCTIVE RES JUDICATA?

 Good morning, your ladyship, I am Siddhant Ranjan, appearing as counsel for the
Respondent. I shall be dealing with the second issue, which is whether the 1 st petition
& grounds not taken operate as constructive res judicata.
 It is established that fresh grounds need to exist in order for a fresh petition to be filed
so as to avoid the bar of constructive res judicata (as per Ghulam Sarwar v. Union of
India).
 I submit that all 3 grounds which the petitioners have supplied as fresh grounds are
not, in fact, fresh and therefore, this petition should be barred by constructive res
judicata.

ON FIRST GROUND:

 The first ground which the petitioners have taken is that we failed to supply all the
documents which were relied upon. It is admitted that 286 documents were indeed not
supplied, but this cannot be treated as a fresh ground. 2 reasons:
o The petitioners should have known that they have not received all the
documents. They were aware that they were supposed to receive 510
documents in total.
 o To prove this, I rely on their own words. I will quote the additional ground
they have filed:
o “…that the detaining authority purported to give him 510 documents, but later
on, the detenu discovered that their number was less…”
o Now I direct your ladyship’s attention to the meaning of the word “purport”,
as defined by the Cambridge Dictionary.
o The verb form of the word “purport” is “to claim that something is true, but
without proof”
o This makes it clear that we had, at the time of supplying the documents, made
it apparent that we were giving 510 documents.
o Going by this, the petitioners should have figured out that certain documents
were missing at that point of time itself. It is difficult to believe that they did
not notice that more than half of the documents were missing.
o And even if they did not notice, it does not make any material difference to the
fact that this ground was available to the petitioners in the first petition itself.
IT IS NOT A FRESH GROUND.
o So, if they did not take it then, it will operate as constructive res judicata now.
o I also rely on the judgement of this Hon’ble Court in STATE OF U.P. v.
NAWAB HUSSAIN: Here, suit in question was barred by constructive res
judicata as the plea was within the knowledge of the plaintiff and the argument
in question could have been taken in the earlier suit.
o Explanation IV of Section 11 of the CPC lays down the law on constructive
res judicata. It says that if a party omits to raise a plea in a former petition,
which was available to them, said plea will be deemed to have been
substantially dealt with, and a subsequent petition on the same grounds will be
barred by res judicata.
 The second reason is:

o Non-supply of certain documents causes no prejudice to the petitioner since

enough documents have been supplied for the preparation of an effective
representation.

o The Kerala High Court has held in the case of Shabna Abdulla v. Union of
India that a detention order can be invalidated on the ground that documents
 were not supplied to the detenu only if he can prove that prejudice was caused
to him due to the non-supply of such documents.

o The court observed that it is the obligation of the detenu to explain why such
documents are relevant for issuing a detention order.

O Therefore, the onus lies on the petitioner. No substantiation of any prejudice

caused to him has been provided. Hence, it can be concluded that the
documents provided were indeed enough to make an effective representation.

ON SECOND GROUND:

 The ground filed by the petitioner is that a §11 representation was made which the
jailer forwarded on November 18th.
 This petition was filed on November 21st. Petitioners themselves state that the same
has not yet been disposed of.
 Your ladyship, I fail to appreciate how a pending representation is a fresh ground. The
Central Government has had only two days to consider this representation.
 Also, because the representation is pending and that too without any inordinate delay,
it is clear that the petitioner is attempting to abuse the process of the court by invoking
multiple avenues of addressal simultaneously.
 Therefore, this petition should be dismissed and too with costs to prevent the
petitioner from abusing the process of the court and to discourage the filing of
frivolous petitions.

ON THIRD GROUND:

 The third ground which the petitioners are claiming as fresh is that the grounds were
served in English and only an oral translation was given to the detenu.
 Obviously, this ground is not fresh. This ground clearly existed when the first petition
was filed. Because the ground was available and was still not argued, it will operate as
constructive res judicata.
 We do not even need to get into the question of whether or not the communication is
valid. This ground was available and was still not taken and thus it is barred by
 constructive res judicata and should be dismissed at this preliminary objection stage
itself

PUBLIC POLICY ARGUMENT

 It is further submitted that it is in the interest of public policy to prevent harassment to

a litigant over the same cause. Allowing the present writ petition would have this
same effect.
 Therefore, in the interest of public policy alone, the second petition must be barred by
constructive res judicata.
 Reference must be made to the judgement of this Hon’ble Court in the case of Srikant
v. District Magistrate, Bijapur, which states that 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.