JUDGMENT : Mohammad Rafiq, J. 1. This habeas corpus petition has been preferred by Ishika, aged six years, Neha, aged four years, and Veer, aged two years, through their mother Manju Devi, praying for issuance of a writ of habeas corpus for release of their father Vishram Gurjar, who has been placed under preventive detention vide order dated 20.09.2016 passed by the Executive Magistrate and Police Commissioner, Jaipur Metropolitan, Jaipur, which has been approved by the Government by order dated 03.11.2016 passed under Section 3(2) of the Rajasthan Prevention of Anti-Social Activities Act, 2006. 2. It may be noted at the outset that Vishram Gurjar himself earlier filed D.B. Habeas Corpus Writ Petition No.243/2016, which was dismissed by a coordinate bench of this court vide judgment dated 13.12.2016. The present Hebeas Corpus Petition has been preferred on the basis of judgment of this court dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016 – Rajesh Sharma @ Raju Pandit through Rakesh Sharma Vs. State of Rajasthan and Others. This court, vide aforesaid judgment dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016, held that the order of his preventive detention dated 28.09.2016 passed under Section 3(2) of the Rajasthan Prevention of Anti-Social Activities Act, 2006 (for short, ‘the PASA Act’) is not in conformity with provisions of Section 20 of the Code of Criminal Procedure. The order of preventive detention passed in that case was therefore held to have been passed by incompetent authority and therefore quashed and set aside. 3. Dr. Mithlesh Kumar, learned counsel for petitioner, submitted that dismissal of earlier Habeas Corpus Petition filed by Vishram Gurjar notwithstanding, the present Habeas Corpus Petition having been filed through children can be maintained under the principle of ‘PARENS PATRIAE’. It is imperative for a State by virtue of directive principles as well as the fundamental rights enshrined in the Constitution of India to secure to all its citizens the rights guaranteed by the Constitution and where citizens are not in a position to ascertain these rights, the State comes into picture and protects the rights of such citizens. Reference in this connection is made to Article 38 and 39A of the Constitution. Learned counsel for the petitioners, in support of his argument, has relied on the judgments of the Supreme Court in Charan Lal Sahu etc. Vs. Reference in this connection is made to Article 38 and 39A of the Constitution. Learned counsel for the petitioners, in support of his argument, has relied on the judgments of the Supreme Court in Charan Lal Sahu etc. Vs. Union of India and Others – AIR 1990 SC 148 and Suchita Srivastava and Another Vs. Chandigarh Admin – (2009) 9 SCC 1 . Learned counsel argued that after decision of the earlier Habeas Corpus Petition filed by Vishram Gurjar, the petitioners came across to subsequent judgment rendered by this court dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016 – Rajesh Sharma @ Raju Pandit Vs. State of Rajasthan and Others, whereunder similar order of preventive detention of the petitioner passed by the Commissioner of Police under Section 32 of the PASA Act, has been declared to be incompetent and unconstitutional and therefore was quashed. Moreover, learned counsel submitted that there have taken place certain developments subsequent to dismissal of earlier Habeas Corpus Petition filed by the petitioner in that the petitioner has been acquitted (i) in criminal case arising out of F.I.R. No.289/21.07.2013, registered with the Police Station Muhana, Jaipur, (ii) in criminal case arising out of F.I.R. No.78/10.03.2012 registered with Police Station Muhana, Jaipur, (iii) in criminal case arising out of F.I.R. No.112/13.04.2012 registered with Police Station Muhana, Jaipur, and (iv) in criminal case no.810/2014 arising out of F.I.R. No.117/2014, Police Station Muhana, Jaipur. In all the above cases, the petitioner has been acquitted vide order dated 25.11.2016, 25.11.2016, 16.01.2017 and 17.04.2017, respectively. Vide judgment dated 17.04.2017 passed by the court of Additional Chief Metropolitan Magistrate No.21, Jaipur Metropolitan, Sanganer, the petitioner has been acquitted of the charge under Sections 147 and 354 IPC by giving him the benefit of doubt whereas he has been acquitted of the charge under Sections 323, 341 and 451 of the IPC on the basis of compromise entered into between the parties. All these events took place after dismissal of the earlier Habeas Corpus Petition vide order dated 13.12.2016 filed by him. Present writ petition therefore can be maintained on the basis of subsequent developments. 4. Relying on the judgment of the Supreme Court in Daryao and Others Vs. All these events took place after dismissal of the earlier Habeas Corpus Petition vide order dated 13.12.2016 filed by him. Present writ petition therefore can be maintained on the basis of subsequent developments. 4. Relying on the judgment of the Supreme Court in Daryao and Others Vs. The State of U.P. and Others – AIR 1961 SC 1457 , learned counsel for the petitioner argued that the principle of constructive res judicata does not apply to the writ of habeas corpus. Learned counsel for petitioner also relied on Constitution Bench judgment of the Supreme Court in Ghulam Sarwar Vs. Union of India – (1967) 2 SCR 271 , to argue that a writ of habeas corpus under Article 226 of the Constitution could be maintained even after dismissal of writ for the same relief. He also relied on the judgment of the Supreme Court in Srikant Vs. District Magistrate, Bijapur - 2007 (1) SCC (Cri) 385, to buttress his argument. Learned counsel for petitioner further relied on the judgment of the Supreme Court in Lallubhai Jogibhai Patel Vs. Union of India and Others – AIR 1981 SC 728 . 5. Mr. B.N. Sandu, learned Additional Advocate General for the respondent State, opposed the writ petition and submitted that mere acquittal of the petitioner in four cases subsequent to decision of the earlier Habeas Corpus Petition, does not furnish any fresh ground to the petitioner to maintain a new writ petition for habeas corpus. The argument is based on the judgment of this court dated 31.03.2017 subsequently rendered in D.B. Habeas Corpus Writ Petition No.235/2016 – Rajesh Sharma @ Raju Pandit Vs. State of Rajasthan and Others, was available to the petitioner when he filed earlier habeas corpus petition. The petition is therefore liable to be dismissed as barred by principle of res judicata/constructive res-judicata. 6. We have given our anxious consideration to rival submissions and perused the material on record. 7. Indisputably, the argument, which the petitioners are seeking to raise by placing reliance on the judgment of this court dated 31.03.2017 in D.B. Habeas Corpus Writ Petition No.235/2016 – Rajesh Sharma @ Raju Pandit Vs. State of Rajasthan and Others, was not raised, though the same could have been raised, at the time when the earlier habeas corpus writ petition was filed and argued on behalf of detenue Vishram Gurjar. State of Rajasthan and Others, was not raised, though the same could have been raised, at the time when the earlier habeas corpus writ petition was filed and argued on behalf of detenue Vishram Gurjar. Therefore, before proceeding to examine the present petition on merits, we shall first deal with the objection raised by the learned Additional Advocate General regarding maintainability of the present habeas corpus writ petition as to whether the same would not be barred by principle of res judicata or for that matter by the principle of constructive res judicata. 8. The Supreme Court in Kirit Kumar Chaman Lal Kundaliya Vs. Union of India – AIR 1981 SC 1621 , after discussing the law of applicability of the principles of res judicata to habeas corpus petitions, observed that the doctrine of finality of judgment or the principles of res judicata is founded on the basic principle that where a Court of competent jurisdiction has decided an issue, the same ought not to be allowed to be agitated again and again. However, such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. In that case, the High Court decided the petition of the detenu under Article 226 which was a discretionary jurisdiction whereas the jurisdiction to grant relief in a petition under Article 32 filed in the Supreme Court is guaranteed by the Constitution. Once the Supreme Court finds that there has been a violation of Article 22(5) of the Constitution, then it has no discretion in the matter but is bound to grant the relief to the detenu by setting aside the order of detention. The doctrine of res judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the constitution. 9. Similar objection was raised before the Supreme Court in Baby Devassy Chully alias Bobby Vs. Union of India and Others – AIR 2013 SC 303 that earlier writ petition filed by the appellant was dismissed by the Bombay High Court and therefore the subsequent writ petition challenging the detention order under the COFEPOSA Act was also rightly dismissed. Aggrieved thereby, the appellant filed appeal by way of special leave before the Supreme Court. Union of India and Others – AIR 2013 SC 303 that earlier writ petition filed by the appellant was dismissed by the Bombay High Court and therefore the subsequent writ petition challenging the detention order under the COFEPOSA Act was also rightly dismissed. Aggrieved thereby, the appellant filed appeal by way of special leave before the Supreme Court. The Supreme Court rejected the objection in the light of additional grounds raised and also the fact that this would affect the personal liberty of citizens and therefore appeal cannot be dismissed on the ground of res judicata. 10. The Supreme Court in State of Punjab Vs. Davinder Pal Singh Bhullar and Others – AIR 2012 SC 364 , held that a second writ petition for issuing a writ of habeas corpus is barred by principles of res judicata. The doctrine of res judicata may not apply in case a writ petition under Article 32 of the Constitution is filed before the Supreme Court after disposal of a habeas corpus writ petition under Article 226 of the Constitution by the High Court. However, it is not possible to re-approach the High Court for the same relief by filing a fresh writ petition for the reason that it would be difficult for the High Court to set aside the order made by another Bench of the same court. However, the Supreme Court held that there may be certain exceptions to the rule that a person was not aware of the correct facts while filing the first petition or the events have arisen subsequent to making of the first application. The Court must bear in mind that doctrine of res judicata is confined generally to civil action but inapplicable to illegal action and fundamentally lawless order. A subsequent petition of habeas corpus on fresh grounds, which were not taken in the earlier petition for the same relief, may be permissible. 11. In T.P. Moideen Koya Vs. Government of Kerala and Others – AIR 2004 SC 4733 , the writ of habeas corpus filed under Article 226 of the Constitution of India challenging the preventive detention, was dismissed on merits and that order was not challenged before the Supreme Court by preferring SLP under Article 136 of the Constitution and was thus allowed to become final. Government of Kerala and Others – AIR 2004 SC 4733 , the writ of habeas corpus filed under Article 226 of the Constitution of India challenging the preventive detention, was dismissed on merits and that order was not challenged before the Supreme Court by preferring SLP under Article 136 of the Constitution and was thus allowed to become final. But the detenue chose to challenge the order of preventive detention by directly filing petition under Article 32 of the Constitution before the Supreme Court seeking similar relief. It was held that bar of res judicata and principles analogous thereto, would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution before the High Court and the writ petition is dismissed whether by a detailed order after considering the case on merits or by a non-speaking order and the said order is not challenged by preferring a Special Leave Petition under Article 136 of the Constitution and is allowed to become final, would it still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus. In that case, after second habeas corpus petition seeking quashment of the detention order passed against the petitioner and for setting him at liberty had been dismissed by the Kerala High Court, the matter was carried in appeal to the Supreme Court upon grant of leave under Article 136 of the Constitution. That appeal was dismissed by a detailed judgment wherein all the contentions raised laying challenge to the detention order and also to the continued detention of the petitioner had been considered. The question before the Supreme Court was whether, even in such circumstances, a subsequent petition under Article 32 of the Constitution seeking to challenge the same detention order would be maintainable. The subsequent writ petition was dismissed as the same would be barred by principle of res judicata. It was however clarified that subsequent writ petition under Article 32 of the Constitution would be maintainable on the ground of changed circumstances or on new pleas, which were not available at earlier stage. 12. Smt. Kavita Vs. The subsequent writ petition was dismissed as the same would be barred by principle of res judicata. It was however clarified that subsequent writ petition under Article 32 of the Constitution would be maintainable on the ground of changed circumstances or on new pleas, which were not available at earlier stage. 12. Smt. Kavita Vs. State of Maharashtra and Others – (1981) 4 SCC 145 , the subsequent writ under Article 32 of the Constitution for habeas corpus after dismissal of earlier writ petition on the premise that the same grounds were awaiting decision of the Constitution Bench was held not maintainable. In Ajit Kumar Vs. District Magistrate, Birbhum – AIR 1974 SC 1917 the Supreme Court held that rejection of the habeas corpus petition by the High Court does not operate as res judicata in an application before this Court under Article 32 of the Constitution. Similar view was taken by the Supreme Court in Niranjan Singh Vs. State of Madhya Pradesh – AIR 1972 SC 2215 . 13. The Constitution Bench of the Supreme Court in Ghulam Sarwar, supra, was dealing with a case where a habeas corpus petition was filed by a Pakistani National, who entered India without any travel document and who was detained in connection with smuggling of gold. His writ petition for habeas corpus was dismissed by Delhi High Court. He then filed petition under Article 32 of the Constitution before the Supreme Court. The court on the question of res judicata, noted that the approach of English as well as American courts on this issue was unanimous that the principle of res judicata was not applicable to writ of habeas corpus, though they came to this conclusion on different grounds. The English courts initially held that a decision in a writ of habeas corpus was not a judgment and hence, would not operates as res judicata and successive petitions before different judges of the same High Court were permissible. But later the English Courts accepted that one division court speaks for the entire court and could not set aside the order of another division bench of the same court. The English administration of Justice Act, 1960 placed this principle on a statutory footing inasmuch as under the Act, no second application could be brought before the same court except on fresh evidence. The English administration of Justice Act, 1960 placed this principle on a statutory footing inasmuch as under the Act, no second application could be brought before the same court except on fresh evidence. The American Courts reached the same conclusion, but by a different route. Their view was that it is of the very essence of the writ of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void, and hence the familiar principle that res judicata is inapplicable in habeas proceedings. The Supreme Court thus making analysis of the approach of the English as well as American courts observed that when a High Court functions as a Division, it speaks for the entire court and therefore, cannot set aside the orders made in a writ of habeas corpus earlier by another Division Bench of the same court. But this principle would not apply to different courts. It would be worthwhile to quote para 9 of the judgment, which reads thus, “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 to a fundamentally lawless order. 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, and if that be applied, the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court the petitioner did not question the constitutional validity of the President's order made under Article 359 of the Constitution. If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection.” 14. If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection.” 14. In Lallubhai Jogibhai Patel Vs. Union of India, supra, the Supreme Court was concerned with the application of the doctrine of constructive res judicata to a subsequent petition for a writ of habeas corpus. In that case, a petition filed by the detenue was rejected by the Supreme Court, but between the dates of dismissal and furnishing of reasons, additional grounds were filed by the detenue. He was advised to file a fresh petition on additional grounds and that is how the subsequent petition was filed. The argument was that the court cannot deny a writ of habeas corpus on a fresh ground which could not, for good reasons, be taken in the earlier writ petition, on the ground that it is barred by any doctrine of estoppel or constructive res judicata. In those facts, the Supreme Court in para 13 of the report, observed thus, “The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.” 15. In a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal Vs. District Magistrate – AIR 1966 PH 51, which purports to follow the English decisions considered in Ghulam Sarwar’s case, supra, and the decision of the Supreme Court in Daryao’s case, supra, the court held as follows:- "No second petition for writ of habeas corpus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court. However, a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and also where for some exceptional reason a ground has been omitted in an earlier petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. In the last case, it is only a ground which existed at the time of the earlier petition, and was omitted from it, that will be considered. Second petition will not be competent on the same ground merely because an additional argument is available to urge with regard to the same." 16. In Deepesh Mahesh Zaveri Vs. Union of India - - 1998 (2) Mh.L.J. 634 , the Bombay High Court held that a second petition for the writ of habeas corpus at the instance of a detenue, who is in custody, would lie to the High Court under Article 226 when (i) fresh and new ground of attack against the legality of the detention or custody has arisen after the decision on the first petition and (ii) where for some exceptional reason, the ground has been omitted in an earlier petition. 17. In Khushbu Sandeep Jain Vs. The State of Maharashtra – 2014 (3) BomCR (Cri) 636, two writ petitions were originally filed by and on behalf of two detenu, who were detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, ‘the COFEPOSA Act, 1974’) and were dismissed. The subsequent writ petition as regards detenue Sandeep Jayantilal Jain was filed by his wife, writ petition for Jayant Rikhabchand Mehta was filed by his mother seeking, issuance of writ of habeas corpus on five fresh and new grounds. The Division Bench of Bombay High Court drew a distinction between maintainability of petition under Article 32 of the Constitution before the Supreme Court and the writ petition under Article 226 of the Constitution before the High Court. On analysis of number of previous case laws, the Bombay High Court held that there was no change or new factor in that case and fresh material cannot be those that were available earlier and could very well have been brought to the notice of the authorities earlier. On analysis of number of previous case laws, the Bombay High Court held that there was no change or new factor in that case and fresh material cannot be those that were available earlier and could very well have been brought to the notice of the authorities earlier. Second writ petition for habeas corpus was held to be not maintainable. 18. In view of the above discussion, we are inclined to hold that mere acquittal of the petitioner in some of the cases by extending him benefit of doubt or on the basis of compromise, cannot dislodge the foundation of satisfaction recorded by the competent authority, which has been upheld by the Division Bench of this court vide order dated 13.12.2016 in D.B. Habeas Corpus Petition No.243/2016 – Vishram Gurjar Vs. The State of Rajasthan and Others, while dismissing earlier habeas corpus petition filed by the petitioner and therefore cannot be considered new ground. Moreover, the argument, which the petitioner seeks to now agitate on the basis of subsequent judgment of this court in Rajesh Sharma @ Raju Pandit Vs. State of Rajasthan, supra, also cannot be held to be a new or fresh ground as such ground was available to him and yet was not agitated. While, therefore, the petitioner can agitate this ground either in appeal against the earlier judgment of this court with leave of the Supreme Court under Article 136 of the Constitution or in freshly filed petition under Article 32 of the Constitution but second writ petition on such grounds before this court cannot be entertained. 19. The petition is therefore dismissed as not maintainable due to bar of res judicata/constructive res judicata.