62. 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 this 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. In case, a petition by issuing Writ of Habeas Corpus is dismissed by the High Court and Special Leave Petition against the same is also dismissed, a petition under Article 32 of the Constitution, seeking the same relief would not be maintainable.
(See: Ghulam Sarwar v. Union of India and Ors., AIR 1967 SC 1335; Nazul Ali Molla, etc. v. State of West Bengal, (1969) 3 SCC 698; Niranjan Singh v. State of Madhya Pradesh, AIR 1972 SC 2215; Har Swarup v. The General Manager, Central Railway and Ors., AIR 1975 SC 202; T.P. Moideen Koya v. Government of Kerala and Ors. AIR 2004 SC 4733; and K. Vidya Sagar v. State of Uttar Pradesh and Ors., AIR 2005 SC 2911).
63. 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. (Vide: Lalubhai Jogibhai Patel v. Union of India and Ors., AIR 1981 SC 728; Ajit Kumar Kaviraj v. Distt. Magistrate, Birbhum and Anr., AIR 1974 SC 1917; and Sunil Dutt v. Union of India and Ors., AIR 1982 SC 53).
64. While dealing with a similar issue, this Court in Srikant v. District Magistrate, Bijapur and Ors., (2007) 1 SCC 486 observed as under:
Whether any new ground has been taken, has to be decided by the court dealing with the application and no hard-and-fast rule can be laid down in that regard. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds.
65. Thus, in view of the above, the law in the issue emerges that a case is to be decided on its facts taking into consideration whether really new issues have been agitated or the facts raised in subsequent writ petition could not be known to the writ Petitioner while filing the earlier writ petition.