Sankar Prasad Mitra, C.J.
1. This Reference to the Full Bench has been made by Mr. Justice S. K. Bhattacharyya and Mr. Justice Sudhamay Basu on May, 31 1974 under Chapter VII, Rules I and 5 of the Appellate Side Rules as amended upto the 10th April, 1974.
2. One Ram Narayan Gupta was served with an order of detention dated the 7th April, 1972 which the District Magistrate of Midnapore had passed in the exercise of powers vested in him by Sub-section (1) read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. By virtue of this order the detenu was arrested on the 13th April, 1972 on the ground that he was 'acting in a manner prejudicial to the maintenance of supplies and services essential to the community as evidenced by particulars stated therein.'
3. On the 23rd May, 1972 the detenu obtained a Rule from this Court under Section 491 of the Code of Criminal Procedure, 1898 which was marked as Criminal Miscellaneous Case No. 809 of 1972. This Rule was discharged by a Division Bench of this Court on the 3rd August, 1972.
4. On the 25th August, 1972 one Chunilal Gupta, a son of the detenu, obtained another Rule from this Court under Section 491 of the Code of Criminal Procedure, 1898 relating to the same order of detention dated the 7th April, 1972.
5. The question arose as to whether the second application was maintainable. As there were differences of opinion on the maintainability of the second application between two Division Benches of this Court in judgments delivered in Criminal Miscellaneous Case No. 1359 of 1972 and Criminal Miscellaneous Case No. 438 of 1972 the present Reference had been made.
6. The question referred to us is as follows:
Do successive applications for issue of a Writ or an order in the nature of Habeas Corpus, either under Article 226 of the Constitution or under Section 491 of the Code of Criminal Procedure, 1898, lie in the same High Court? If so, under what circumstances and to what extent the High Court may grant relief?
7. Our attention has been drawn by Counsel for both the parties to different decisions of High Courts in India. But it seems to us that except a passing reference to a decision of a Full Bench of the Punjab High Court it would not be necessary to discuss the High Court judgments in this case. The question that has been referred can be answered by relying on two decisions of the Supreme Court reported in : 1SCR433 , (P. L. Lakhanpal v. Union of India) and : 1967CriLJ1204 (Ghulam Sarwar v. Union of India).
8. Before, however, we refer to the Supreme Court decisions, let us lay down the principles that should be applicable to a subsequent petition for issue of a Writ in the nature of Habeas Corpus. We shall try to support these principles by referring to appropriate passages in aforesaid Supreme Court judgment and also to a judgment of the Bombay High Court. The principles are as follows:
(1) When an application for a Writ in the nature of Habeas Corpus either under Article 226 of the Constitution or under Section 491 of the Code> of Criminal Procedure, 1898, is filed before a Bench of a High Court and a decision is pronounced thereon, it is a decision of the High Court itself. Successive applications on the same grounds do not He to the same High Court.
(2) If grounds available to the detenu or the petitioner, as the case may be, at the time the first application is made are not pressed in that application, they cannot be made the subject-matter of a subsequent substantive application.
(3) Successive applications can, however, be made under two circumstances namely, (i) when facts or materials were in existence at the time of the first application but were not available to the petitioner or the detenu and (ii) when events have arisen subsequent to the making of the first application.
(4) The above principles, however, will not prevent the High Court in the exercise of its inherent power to grant relief in appropriate cases for the ends of justice by making further orders in the same proceedings, whether on an application or otherwise.
9. In re Prahlad Krishna Kurne, reported in : AIR1951Bom25 the judgment was delivered by Chief Justice Chagla sitting with Mr. Justice Gajendragadkar (as His Lordship then Was) and Mr. Justice Dixit. In paragraph 5 at page 27, the learned Chief Justice states:
It is clear that even under Article 226 it is only the High Court that can issue a Writ for the enforcement of a fundamental right. The jurisdiction is conferred upon the High Court as such and not upon any Judge or Judges of that Court, and therefore when a Division Bench of this Court, hears an application under Article 226, it is hearing that application as the High Court, and its ultimate decision is not their decision but the decision of the High Court.
10. The principle enunciated by Chief Justice Chagla gives support to the first principle laid down hereinbefore. It is supported by the Supreme Court also as we shall see later.
11. In : 1SCR433 , a petitioner's earlier Writ petition impugning his order of detention was dismissed and his contentions challenging the validity of the detention rejected. The Supreme Court held that the petitioner could not in a subsequent Writ petition be permitted to reagitate the same contention when no new circumstances had arisen justifying the reagitation.
12. The next case we have to rely on is the case reported in : 1967CriLJ1204 . It would be relevant to quote paragraphs 8 and 9 at page 1337 of the judgment of Chief Justice Subba Rao who delivered the judgment of the Court. The paragraphs run thus:
Para 8.- 'On the question of res judicata the English and the American Courts agreed that the principle of res judicata is not applicable in a writ of habeas corpus, but they came to that conclusion on different grounds. It was held in England that a decision in a writ of habeas corpus was not a judgment and, therefore, it would not operate as res judicata and on that basis it was thought at one time that a person detained could, file successive applications before different Judges of the same High Court. But subsequently the English Courts held that a person detained cannot file successive petitions for a writ of habeas corpus before different Courts of the same Division or before different Divisions of the same High Court on the ground that the Divisional Court speaks for the entire Division and that each Division for the entire Court, and one Division cannot set aside the order of another Division of the same Court (See re Hastings (No. 2) (1958) 3 All ER 625 and re Hastings (No. 3) (1959) 1 All ER 698). The Administration of Justice Act, 1960 has placed this view on a statutory basis, for under the said Act no second application can be brought in the same Court except on fresh evidence. The American Courts reached the same conclusion, but on a different principle. In Edward M. Fav v. Charles Noia (1835-38) 9 Law Ed 859, the following passage appears. 'As put by Mr. Justice Holmes in Frank v. Mangum (1915) 237 US 309 (348). If the petition discloses facts that amount to loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision of law. It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas corpus proceedings.'
Para 9.- 'But coming to India, so far as the High Courts are concerned, the same principle accepted by the English Court will equally apply, as the High Court functions in Divisions not in benches. When it functions as a Division, it speaks for the entire Court, and, therefore, it cannot set aside the order made in a writ of habeas corpus earlier by another Division Bench. But this principle will not apply to different Courts .... 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, namely, this Court. The order of the High Court in the said writ is not res judicata as held by the English and the American Courts either because it is not a judgment or because the principle of res judicata is not applicable in a fundamentally lawless order.
13. It is needless to point out that the differences of opinion between the two Division Benches of our Court have taken place on the construction of paragraph 9 of the above judgment. One of the Division Benches is of the view that a second application does not lie because a decision of one Division Bench is the decision of the High Court itself. The other Division Bench has taken the view that since the doctrine of res judicata does not apply a second application can be made in the same Court. It seems to us, for the purposes of the present reference that in both the aforesaid judgments the Supreme Court has consistently followed the principle that a second application to the same High Court cannot be made except on new circumstances.
14. Learned Counsel appearing for the petitioner has placed before us a Full Bench decision of the Punjab High Court reported in , Ram Kumar v. District Magistrate Delhi. The Punjab High Court seems to be of the view that a second application is maintainable on a ground omitted in the first application provided that the omission is satisfactorily explained. This decision of the Punjab High Court can no longer be supported on the ground that the judgments of the Supreme Court to which we have made reference were delivered subsequent to the decision of the Punjab High Court.
15. In view of what we have stated above, our answer to the question referred to us is that successive applications for the issue of a Writ or an order in the nature of Habeas Corpus, either under Article 226 of the Constitution or under Section 491 of the Code of Criminal Procedure, 1898, do not lie in the same High Court except in circumstances we have already laid down. When an application does lie, however, the Court can give the same relief as could be given in the earlier application.
16. The Reference is disposed of on the above basis.
17. Let the matter be now sent back to the Division Bench for disposal according to law.
P.C. Borooah, J.
18. I agree.
A.K. De, J.
19. I agree.