Second Writ Petition assailing same detention order is maintainable on grounds not available at the time of filing first petition

Karnataka High Court: While deciding the points of reference as laid before the Court in a set of writ petitions filed under Article 226 and 227 of the Constitution, a Full Judge Bench comprising of Subhro Kamal Mukherjee, CJ, B.V. Nagarathna, J. and Aravind Kumar, J. held that a second writ petition assailing the same detention order is maintainable on fresh grounds or new grounds.

The instant order of reference arose under provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drugs Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985. Three points were referred to the High Court for appropriate orders. The Court decided on all the three points in seriatim.

On the point of maintainability of a second writ petition challenging the detention order, when the first one was already dismissed, the High Court held that a second writ petition based on the same grounds which were raised in the first petition is not maintainable on the principles of res judicata. However, it is maintainable if it is based on fresh grounds or those different from the ones taken in the first petition.

On the second point, it was held that the non-mentioning of the period of detention in the order of detention would not vitiate the same. However, in such a case the detenu could not be detained after a maximum period of twelve months as provided under Section 13 of the Act.

Lastly, the High Court held that there was no nexus between Sections 3(1) and 3(2) of the Act, as Section 3(1) relates to the order of detention passed by the State Government, and

Section 3(2) relates to the order as passed by the delegated Authority. And the time period mentioned in both the provisions, have no nexus either. The time mentioned in the first provision relates to the period of detention and that mentioned in the second provision relates to the period of delegation.

The points of reference were answered accordingly and the writ petitions were directed to be placed before the appropriate bench. [Abdul Razak v. State of Karnataka, 2017 SCC OnLine Kar 2855, dated 7.10.2017]

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