Order Sudhamay Basu, J. This Rule obtained on an application under section 491 of the Code of Criminal Procedure by Shri Chunilal Gupta, & son of the detenue, Shri Ram Narayan Gupta, relates to an order of detention dated the 7th of April, 1972 passed by the District Magistrate, Midnapur in exercise of the powers vested in him under sub-section (1) read with sub-section (2) of section 3 of the Maintenance of Internal Security Act, 1971. The detenu was arrested on the 13th of April, 1972 by virtue of the said order 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 the particulars given below ;- 2. On 2. 7. 71 at about 20.00 hrs. you along with your associates committed theft in respect of D. C. Relays from J. Cabin, Nimpura, worth about Rs. 3000/-. Due to such act of yours, out original of Nimpura failed and the train services remained suspended for several hours. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community. (2) On 7. 7. 71 about 07.00 hrs. you were found proceeding with a bag in a rickshaw towards Kharagpur Rly. Station. The bag contained 4 K. Gs. of copper pieces, 15 K. Gs. of brass pieces, 45 pieces of brass chakti marked SER and 5 brass machinary parts. You were challenged and arrested by the Police and as you failed to account for the possession of those properties, after arrest in pursuance of your statement Police recovered 5 cables of signalling relays of D. C. neutral line one bundle of insulated copper winding wire of transformer, 25 kgs. of copper winding wire for a bout 60 relays, 7 strand flexible copper wire used for pdg. earth connection of signalling circuits in Rly. electrified area, broken piece of moulded cases for signalling line relays, one piece of P. V. C. cable wire, 10 Kgs. of copper wire of diff-gauges cut into pieces, 76 brass chakti marked SER Rly. Protection Force from your house. Rly. expert opined that the materials are used in the Rly. only in signal and communication branch and cannot be obtained from any other source. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community. Protection Force from your house. Rly. expert opined that the materials are used in the Rly. only in signal and communication branch and cannot be obtained from any other source. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community. (3) On 31.1.72 at about 20.50 hours you along with your associates committed theft in respect of Post and Telegraph Truni Telephone cable worth about Rs. 340/- from KM/I05/2-4 near Jakpur Rly. Stn. Due to such act of yours trunk "telephone lines remained suspended for several hours. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community." 3. It appears that on 23-5-1972 the detenu as petitioner obtained a Rule under section 491 of the Code of Criminal Procedure from this Court in Criminal Misc. Case No. 809 of 1972. The Rule was however, discharged by a Bench of this Court consisting of A.P. Das and A. K. De, JJ. on 3-8-72. It is contended by Mr. Dhar the learned lawyer appearing on behalf of the detenu, that some materials on record had be not been placed and some points of law had not been urged on behalf of the detenu before that Bench. In view of the same this Bench according to Mr. Dhar, is competent to entertain this application and pass another appropriate order relating to the said detention order passed by the District Magistrate of Midnapore on 7-4-1972. 4. On behalf of the State, however, a preliminary objection was taken that since another Bench of this Court had heard the matter and discharged an earlier Rule this Court is not competent to consider another application relating to the same order. 5. We felt that the question of a renewed application for an order in the nature of a Writ of Habeas Corpus was not free from difficulty. Decisions made by different Benches of this Court seem to vary as to the nature, extent and the scope of a fresh application relating to the same order. It appears that the position in England has recently undergone a change. The decisions of the Supreme Court have also not been interpreted and followed uniformly or in the same way. Under the circumstances the question involved seemed to call for a thorough examination. 6. It appears that the position in England has recently undergone a change. The decisions of the Supreme Court have also not been interpreted and followed uniformly or in the same way. Under the circumstances the question involved seemed to call for a thorough examination. 6. As to the successive applications for the Writ on the same, materials, the earlier view in England was that any Court could issue a Writ unfettered by the decision of any other Tribunal even though the grounds in the application were exactly the same. Some of the old English cases on this point that can be referred to are: Cox v. Hakes, 1890 (15) App. Cases 506, Ex. P. Chapple (1950) 66 T.L.R. (Pt. II) 932, E. Efeko v (the Officer Administrating) Government of Nygeria, 1928 A. C. 458. But in Re : Hastings, (1958) 3 All E.R 625 the entire matter was reconsidered and Lord Parker, C. J. negatived the idea that there had always been a right to go from Court to Court and Judge to Judge. Parker, C. J. held that this right was only in existence during the vacation when the judges did not sit in Bench and the applicant was entitled to the opinion of the Full Court. But once an application was heard by Queen's Bench Division it could not be heard again on a renewed application on the same evidence and the same grounds by any other Divisional Court of the sarhe Division. The reason was that the decision of a Divisional Court was equivalent to the decision of al1 the Judges of the Queen's Bench Division. Section 14, sub-section (2) of the Appel1ate Jurisdiction Act 1960 now provides that when an application for Habeas Corpus has once been made in Civil or Criminal matter, no such application shall be made on the same grounds in respect of the same person to any Court or Judge unless fresh evidence is produced in support of the application. 7. In India, the Supreme Court, in the case of Ghulam Sarwar v. Union of India and ors. reported in A.I.R. 1967 S. C. 1335, held that an order made by a Circuit Bench of the Punjab High Court relating to a Writ of Habeas Corpus did not operate as res judicata in the Supreme Court. The decision was made on an application under Article 32 of the Constitution of India. reported in A.I.R. 1967 S. C. 1335, held that an order made by a Circuit Bench of the Punjab High Court relating to a Writ of Habeas Corpus did not operate as res judicata in the Supreme Court. The decision was made on an application under Article 32 of the Constitution of India. Subba Rao, C. J. while delivering the judgment on behalf of the majority reviewed the position of the writ of Habeas Corpus in England and America and held that the principle of res judicata did not apply either because the order in a Writ petition for Habeas Corpus is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order. It was also held that if the doctrine of res judicata is attracted to an application for a Writ of Habeas Corpus there is no reason why the principle of Constructive res judicata cannot also govern the said application, for, the Rule of Constructive res judicata is only a part of the general principles of the law of res judicata. 8. In the case of P. L. Lakhanpal v. The Union of India, reported in A.I.R. 1967 S. C. 908 on a petition by a detenu under the Defence of India Rules the Court held that the petitioner could not be permitted to re-agitate the same questions, "it not being his case that any new circumstances have arisen justifying their re-agitation". The Supreme Court, therefore, seems to have envisaged in that case that under new circumstances re-agitation of the same question may be possible. 9. In a later case, the V.S.R. Mills Ltd. vs. Government of Madras, reported in A.I.R. 1968 S.C. 1196, it was held that where a writ petition under Article 226 is disposed of on merits and the order of dismissal of the petition is a Speaking Order that would amount to res judicata and would bar a petition under Article 32 on same facts irrespective of whether a notice was issued to the other side or not before such decision was given. That was, however, not a case relating to Habeas Corpus. 10. That was, however, not a case relating to Habeas Corpus. 10. In an earlier case reported in A.I.R. 1949 Allahabad 147 (Satish Gopal and another vs. Rex.) a Full Bench of the Allahabad High Court held that once the Court pronounced on the legality of the detention order in an application under section 491 of the Code of Criminal Procedure, section 369 of the Code bars reconsideration of the same matter and a fresh application would amount to an application for review of to previous order. It was further held that a dismissal of an application under section 491 will not bar a second application where further detention of a person has become illegal by something that transpires after the first application was disposed of. It may be noted that the Allahabad Full Bench case involved an application under section 491 of the Code of Criminal Procedure and not a writ petition under Article 226 of the Constitution. In the case of Ram Kumar Pearay Lal v. District Magistrate reported in A.I.R. 1966 Punjab 51, a Full Bench decision of the Punjab High Court held similar views. The Punjab Full Bench decision rested on a petition both under Article 226 of the Constitution and section 491 of the Code of Criminal Procedure. It was held that the power under Article 226 of the Constitution is much wider than that under section 491 of the Code of Criminal Procedure and these provisions overlap. When a petition is made under Article 226 of the Constitution, reference to section 491 of the Code of Criminal Procedure is for practical purposes a superfluity. It was further held that when in a petition for Writ of Habeas Corpus decision is given on merits after hearing arguments, whether the petition is allowed or is refused, it determines the right of the detenu or person in illegal custody to be released from the same or not, and, at the same time the right of the party having the custody to maintain the same or not. In this manner such a decision is a judgment or in any case a final order. No second petition for" Writ of Habeas Corpus on the same ground, on which a previous similar petition had been refused by the Court lay. 11. In this Court in the Criminal Misc. In this manner such a decision is a judgment or in any case a final order. No second petition for" Writ of Habeas Corpus on the same ground, on which a previous similar petition had been refused by the Court lay. 11. In this Court in the Criminal Misc. Case No. 1359 of 1972, Union of India and others, in an application under section 491 of the Code of Criminal Procedure to the effect "that an order of a High Court in an application for a Writ in the nature of Habeas Corpus is not a judgment and the principles of res judicata are not applicable to a fundamentally lawless order and the order made on a petition for Habeas Corpus will not operate as res judicata." Borooah, J. also followed a Division Bench of this Court in Criminal Misc. Case No, 583 of 1971 and held "in the circumstances aforesaid and for the ends of justice we are of the view that we should interfere in the persent case as the order of detention is a fundamentally lawless order having been approved beyond the statutory period of 12 days." In the earlier Criminal Misc. Case No. 583 of 1972 Borooah, J. along with R. Bhattacharyya, J. also followed the case of Ghulam Sanvar vs. Union of India. In that case Borooah, J. held "in the facts and circumstances of this case specially when the learned Advocate on behalf of the detenu failed to bring to our notice that the order of detention was passed on alternative satisfaction, we think that we should exercise our inherent powers and in the ends of justice strike down the order of detention by recalling our order dated the 7th February. 1972". 12. In another case namely, Misc. Case No. 438 of 1972 another Division Bench of this Court consisting of A. P. Das and S. K. Bhattacharyya, JJ. considered this question and after referring to the Full Bench decisions of the Allahabad High Court and the Punjab High Court as well as the case of Lakhanpal vs. Union of India and another (A.I.R. 1967 S.C. 908) was much more cautious. A. P. Das, J. held (S. K. Bhattacharyya concurring with him) in that case: "It should be remembered that a decision of the Division Bench of the High Court is the decision of the High Court itself. A. P. Das, J. held (S. K. Bhattacharyya concurring with him) in that case: "It should be remembered that a decision of the Division Bench of the High Court is the decision of the High Court itself. So, if one Division Bench has dismissed the earlier application under section 491 of the Code of Criminal Procedure for a Writ of Habeas Corpus in respect of this detenu, this Division Bench cannot set aside that order. The petitioner also cannot re-agitate the points which were taken and decided in the earlier application. Further again the petitioner cannot also press any matter which he could have taken and pressed at the hearing of the previous Rule". Yet on the facts of that case it transpired that a representation made by the detenu was not considered by the State Government at all. In the earlier case the petitioner's Advocate was misled by an incorrect statement in the affidavit-in-opposition of the District Magistrate saying that the representation had been duly considered and rejected by the State Government. It was after the disposal of the previous application and in course of the hearing of the second application that it came to the notice of the Court that as a matter of fact the representation of the detenu had not been considered at all by the State Government. That circumstance was considered to be a new one arising after the disposal of the previous application. On that ground the Rule was made absolute. It may thus be noted that the views expressed by A. P. Das and S.K. Bhattacharyya, JJ. were much more cautious and at variance with the views expressed by Borooah, J. and R. Bhattacharyya, J. 13. Under the circumstances it appears to us that the question of application of the principle of res judicata in a renewed application for the issue of an order in the nature of Habeas Corpus should be referred to a larger Bench. We, therefore, refer it to the Hon'ble the Chief Justice to constitute a Full Bench for consideration of the following question: "Does the principle of res judicata, including the principle of constructive res judicata, apply in the case of a petition ur1der section 491 of the Code of Criminal Procedure and a petition under Article 226 of the Constitution for a Writ of Habeas Corpus? If So, what is the nature and extent of its application to such petition? 14. As there is a decision of a Bench of this Court favourable to the petitioner and as the disposal of this petition is likely to take some time we hereby direct, for the ends of justice, that the detenu be enlarged on a bail of Rs. 1000/- with two sureties of like amount subject to the satisfaction of the District Magistrate, Midnapore. The detenu, however, is to report every Sunday to the Kharagpur Police Station. Let this Bail order be communicated to the District Magistrate, Midnapur at the cost of the petitioner by a special messenger. The entire judgment need not be sent. S. K. Bhattacharyya, J. : I agree. ORDER OF FULL BENCH Sankar Prasad Mitra, C. J : 15. A Division Bench consisting of Mr. Justice S. K. Bhattacharyya and Mr. Justice Sudhamay Basu has made a reference to "a Full Bench" for consideration of the following question : "Does the principle of res judicata, including the principle of constructive res judicata, apply in the case of a petition under section 491 of the Code of Criminal Procedure and a petition under Article 226 of the Constitution for a Writ of Habeas Corpus ? If so, what is the nature and extent of its application to such petition? 16. The order was made on February 5, 1973. In accordance with the order, this Bench was constituted. At the outset, it was stated by Counsel for both the parties that the question as framed can be answered straightaway by the decision of the Supreme Court in "Golam Samar v. The Union of India and others, (1) A.I.R. 1967 S.C. 1335. In other words, the answer to the question is that the principle of, res judicata including the principle of constructive res judicata does not apply to a case of a petition under section 491 of the Code of Criminal Procedure and a p6tition under Article 226 of the Constitution for a Writ of Habeas Corpus. But that, Counsel for both parties submitted to us, would not solve the problems that have arisen in the instant case. But that, Counsel for both parties submitted to us, would not solve the problems that have arisen in the instant case. By consent of both the parties, the following question was, therefore, framed: "Whether successive applications for issue or 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 lie in the same High Court? If so, under what circumstances and to what extent the High Court can grant relief? 17. We have heard the matter at length and are prepared to answer this question out our difficulty is that from the referring order we are unable to ascertain under which provision of law or the Rules this order of reference has been made. 18. The provisions to which our attention has been drawn are (1) Clause 36 of the Letters Patent; (2) Chapter VII, Rule 7 of the Appellate Side Rules; (3) Chapter VII, Rule 7 of the Appellate Side Rules read with Rule 29 of Chapter XI of the Appellate Side Rules, and (4) the second proviso to Rule 1 of Chapter II of the Appellate Side Rules. 19. It seems to us that none of the provisions referred to above can be applied to the instant reference. 20. A reference under Clause 36 of the Letters Patent can be made if two Judges constituting a Division Bench be equally divided and they state the point upon which they differ. In the instant case, it is not stated that there has been a difference of opinion between the two learned Judges. 21. Rule 7 of Chapter VII of the Appellate Side Rules can be attracted if a Court hearing applications under section 491 of the Code of Criminal Procedure or under Article 226 of the Constitution relating to a Writ in the nature of Habeas Corpus could be said to be a hearing before "a' Division Bench as a Court of Criminal Appeal, Reference or Revision" as envisaged by Rule 5 of Chapter VII. We have not found any provision under which the Division Bench in question could be treated as a Division Bench under Rule 5. 22. We are also unable to apply Rule 7 of Chapter VII read with Rule 29 of Chapter XI. We have not found any provision under which the Division Bench in question could be treated as a Division Bench under Rule 5. 22. We are also unable to apply Rule 7 of Chapter VII read with Rule 29 of Chapter XI. Rule 29 of Chapter XI merely prescribes that all applications for orders, under clauses (a), (b), (c), (e) and (f) of section 491 of the Code of Criminal Procedure shall be made before the Division Bench taking that the criminal business of the Appellate Jurisdiction of the High Court. In other words, this Rule indicates the Bench which would hear applications under section 491 of the Code of Criminal Procedure. But it is not a Division Bench sitting as a Court of Criminal Appeal, Reference or Revision. 23. Lastly, the second proviso to Rule 1 of Chapter II of the Appellate Side Rules also seems to be inapplicable to the present case. Rule 1 of Chapter II is a Rule relating to a Division Bench for the hearing of appeals from decrees or orders of the Subordinate Civil Courts and both the Provisos to the Rule refer to that Division Bench. The Bench to which the present application was made was not a Bench of this description. In these premises, this Reference being incompetent, let the records go back to the Division Bench which made the order of reference. P. C. Borooah, J : I agree A.K. De, J : I agree. Order accordingly.