P. Jaganmohan Reddy, J. - (1.) By this application under Art. 32 of the Constitution, the petitioner challenges his detention under S.2-A of the Madhya Pradesh Public Security (Amendment) Act of 1970 (hereinafter called the 'Act'). The District Magistrate of Gwalior by his order dated May 26, 1971 under the said Act thought it necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds on which the detention was sought to be justified were dated the same day and appear to have been served on the detenu, though it is not apparent on what date those grounds were served on him. As he was informed by the Government that he has a right to make a representation within a period of 30 days, the petitioner says that he submitted his representation to the State Government on June 19, 1971 but here again there is nothing to show from the counter-affidavit of the respondent as to when that representation was received or on what date it was considered and rejected. The petitioner, however, alleges that his representation was dismissed on August 17, 1971 by the Governor of Madhya Pradesh relying on the recommendation of the Advisory Board. In other words, it is his contention that his representation was not considered till after the Advisory Board had given its opinion to the State Government and only then it was rejected. Whether this is so or not, we are in no position to ascertain. It is true that the Advisory Board, as appears from the order of the Governor, was of the opinion that there exists sufficient grounds for the detention of the petitioner and consequently the Government acting on that opinion confirmed the order of detention passed against the petitioner and directed that the order of detention shall remain in force till 26th May, 1972. The detenu filed a Writ Petition in the High Court of Madhya Pradesh under Art. 226 of the Constitution challenging the detention order on the ground that his previous conviction in 1964 could not form the basis for detention and that the other grounds mentioned in the grounds served on him were all vague and non-existent as on the date the detention order was passed. Jagmohan was no more. Even the ground that in May-June, 1969, four rifles of 303 bore were given to Sobran Singh for Rs.4,000/- was also vague. This petition was, however, rejected by a Division Bench of the High Court by its judgment dated September 18, 1971.
(2.) The learned advocate on behalf of the State of Madhya Pradesh, at the outset, raised a preliminary objection to the maintainability of this petition because according to him the dismissal of the petition of the detenu by the High Court under Art. 226 operates as res judicata. This contention is opposed to the view taken by this Court. In Ghulam Sarvar v. Union of India, (1967) 2 SCR 271 a Constitution Bench held that the order of the High Court does not operate as res judicata. We are not here concerned with the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri and Shelat, JJ. and the other by Bachawat, J. for arriving at this conclusion except to state that the majority was of the view that it does not operate as res judicata as it is not a judgment and also because the principle is inapplicable to a fundamentally lawless order which this Court has to decide on merits. Bachawat, J. while substantially agreeing with this view thought that the order of the High Court is not a judgment and the previous dismissal of such a petition by the High Court is only one of the matters taken into consideration under O.35 Rr.3 and 4 of the Supreme Court Rules before issuing a rule nisi. The petitioner, however, would not have a right to move this Court under Art. 32 more than once on the same facts. In Writ Petitions Nos. 227 and 228 of 1969 decided on September 16, 1969 (reported in AIR 1969 NSC 182) a similar view as that expressed by the majority was expressed, viz., that there is no bar of res judicata to a petition under Article 32 in a case where earlier the High Court had dismissed the petition under Art. 226. In view of this legal position, we reject the preliminary objection.
(3.) The learned advocate for the petitioner contends inter alia that since the State has not in its counter-affidavit denied the allegation made in the petition nor has it stated when it is that the representation of the petitioner was considered and dismissed, the detention is illegal inasmuch as the right to make a representation as well as to have it considered and determined is a valuable right implicit in clause (5) of Art. 22. As the law relating to preventive detention, which has to conform to the limits imposed in Art. 22, is a restriction on the fundamental right of the freedom of a citizen, it has necessarily to be construed in a manner which will not restrict that right to any extent greater than is necessary to effectuate the object of that provision. Clause (5) of Art. 22 prescribes that "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order". The words "afford him the earliest opportunity" in this clause have been interpreted by this Court in Abdul Karim v. State of West Bengal, (1969) 3 SCR 479 to imply that the State Government to whom the representation is made should properly consider it as expeditiously as possible. Nor is the constitution of an Advisory Board under S.8 of the Act relieves the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it, and take appropriate action thereon including the revocation of the order which it is empowered to make under S.13 of the Act. It was further emphasised that the right under Art. 22 (5) to make a representation has been guaranteed and is independent of the duration of the period of detention irrespective of the existence or non-existence of the Advisory Board. Even if a reference has to be made to the Advisory Board under S.9 of the Act, the appropriate Government is under a legal obligation to consider the representation of the detenu before such a reference is made. This matter was again considered by a Constitution Bench of this Court in Jayanarayan Sukul v. State of West Bengal, (1970) 3 SCR 225 which held that broadly stated, four principles are to be followed in regard to the representation of detenu. These have been summarised in the head note thus: "Firstly, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet-will and convenience. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu". These principles ae now well established in their application to the detention of a citizen under any law made by a State Legislature or by the Central Parliament.;