AIR 1967 SUPREME COURT 1335 ::1967 2 SCR 271

Supreme Court Of India

Hon'ble Judge(s): K. Subba Rao, M. Hidayatullah, S. M. Sikri, R. S. Bachawat, J. M. Shelat , JJJ

(A) Constitution of India , Art.226, Art.32— Habeas Corpus - Principle of res judicata - Applicability - Successive petitions in the same High Court on the same facts barred - Petition to Supreme Court not barred even though it was already heard and dismissed in the High Court. Criminal P.C. (5 of 1898) , S.491— 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 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 English and the American Courts because it is either not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. 1958-3 All ER 625 and 1959-1 All ER 698 and (1835-38) 9 Law Ed 859 and (1915) 237 US 309 and (1923) 68 Law Ed 999 and (1941) 86 Law Ed 1302 and (1923) 265 US 224 and (1954) 347 US 260, Referred to.(Para 9 10) Per Bachawat, J. : Order 35, R. 3 of the Supreme Court Rules provides that a petitio....