1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP no.13/2007 Reserved on: 05.06.2025 Pronounced on: 15 .07.2025 Ishfaq Ahmad Bhat and others …….Petitioner(s) Through: Mr P. Imroze, Advocate Versus Secretary Home Department and others ……Respondent(s) Through: Dr. Rajiv Nanda, Senior Advocate with Mr. B.A.Zargar, Adv for resp.1&4 Mr. T.M.Shamsi, DSGI with M/s Faizan, CGC, and Bisma, Adv for resp.3 Mr. Jahingeer Ahmad Dar, GA for respondents 2,5,7&8 CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGMENT 1. Through the medium of this habeas corpus petition, the petitioner is seeking following reliefs: i. Habeas corpus, to present the detenus before the Court; ii. Mandamus, commanding the respondents to disclose the law and authority under which the detenus have been kept under detention; iii. Mandamus, commanding the respondents to release the detenus without any further loss of time and also pay the costs/damages to the detenus for their illegal detention iv. Mandamus, commanding upon SHO Trehgam to explain why he has not lodged an FIR against the respondent No.3 and 4 after receiving the information from the petitioners regarding the illegal detention of the detenus. 2. It would be appropriate to reproduce the contents of the instant petition to see what the case has been set up by the petitioners therein: “2. That the petitioners are father of Ishaq Ahmad Bhat, Bashir Ahmad Lone and Bashir Ahmad Mir, who have been detained by the 2 respondents especially respondent No.4 without any rhyme and reason and the place where the detenues are lodges is not known to the petitioners as such are being interested in the life and liberty of their children file this writ petition before this Hon’ble court. 3. That the detenues came across the border alongwith other 9 candidates and surrendered before the respondent No.4 of which Mr. Dogra was inspector of that time evidenced by the fact that the certificate issued by the respondent No.4 in favour of Bashir Ahmad Lone S/o Gh. Mohammad Lone was issued under his seal and signature therefore leaving the ambiguity at knought, whether the detenues are with them or not. The copy of the certificate is annexed herewith as ANNEXURE “A” for kind perusal of this Hon’ble Court. 4. That the detenues were made to surrender by one of the person namely Abdul Majid Lone S/o Mohammad lone r/o Budanambal Kupwara who was set at liberty by the respondent No.4 but afterwards in November – December 2006 the same person was booked under PSA Act of the State of Jammu & Kashmir and is behind the bars at Kotebalwal, thereby undergoing through the term of his punishment. 5. That the petitioners used to see the detenues from May 2004 to November 2004 at Chowkibal Radi and Budanambal in the houses of Ab. Rashid Khan R/o Chowkibal radi and Nazir Ahmad Lone S/o Mohamad Lone R/o Budanamabal through Ab. Majid Lone mentioned above presently under detention and it will be worthwhile to mention over here that such detenues were utilized by respondent No.3&4 for eradication of militancy in the Valley 6. That from December 04 onwards the whereabouts of the detenue is not known despite the repeated requests of the petitioners before the concerned quarters including the state machinery but every agency/ instrumentality has shown a poor response towards the requests/ representation filed before them from time to time. 7. That getting worried about the life and liberty of the detenues the petitioners made all their endeavour to lodge an FIR against the respondent No.4 before the SHO concerned who never bothered about the life and liberty of the detenue however he was duty bound to investigate about the whereabouts of the detenues. 8. That a press release came to be issued in the month of October 2005 through leading Local News Paper Al-Safa dated 8.10.2005 with the highlighted facts that the 12 persons who have surrendered before respondent No. 3 & 4 are expected to be no more for the reason that every agency is showing complete ignorance about the whereabout of the detenues. A press release is annexed herewith this petition and is marked a ANNEXURE “B” for kind perusal of this Hon’ble Court. 9. That a detailed representation was filed by the wife of the petitioner No.1 namely Zoona Begum before the Hon’ble Minister of State Home Affairs who forwarded the same to the SSP Kupwara which annexed herewith as ANNEXURE “C” for kind perusal of this Hon’ble Court. 10. That in light of Annexure “C” supra SSP Kupwara under endorsement No.Estt/05/21004 dated 17.5.2005 endorsed the same to the Superintendent of Police Handwara to find the enclosed application endorsed by the Minister of State of Home Affairs J&K Srinagar addressed to the SSP Kupwara for the redressal of the grievance as the matter falls within their jurisdiction. The copy of the same is annexed herewith and is marked as ANNEXURE “D” to this petition. 3 11. That despite all the efforts the petitioners could not succeed in getting the necessary FIRs lodged against the respondent No. 3 and 4 before the SHO concerned for which the petitioners were constrained to file Petition under section 491 of Cr.P.C. bearing No. 09 of 2006 which stands withdrawn with the liberty to file a fresh. 12. That the petitioners did all that one under circumstances is expected to have done so far but all in vain in addition to this day to day requests / representation were submitted before the Police Officers from top to bottom regarding the illegal detention of their childrens therefore, leaving no scope except to apprehend that the police authorities are not inclined towards the investigation of the matter and left the detnues at the mercy of the Almighty which is against all the Cannons of Ethics, morality and law.” 3. Reply/objections have been filed by the respondents against the instant petition. 4. I have heard learned counsel for parties and considered the matter. It is by virtue of order dated 08.05.2025 that Mr. Jahingeer A. Dar, GA, has been directed to assist this Court in the matter. 5. Learned counsel for parties, after reiteration of submissions made in the petition, have invited attention of this Court to enquiry and report of enquiry officer. Contrary to this, the learned counsel for respondents invited attention of this Court to the Response(s) submitted by respondents against the enquiry report inasmuch as it is stated therein that the respondents had not been heard while conducting enquiry. Even it is vehement contention of respondents that all that has been stated by petitioners in their writ petition is false, frivolous and vexatious and the story of surrender is also being denied as according to respondents no such surrender took place and there exists no such record with respondents. And that in such situation, the disputed/complex questions of fact cannot be adjudicated upon and/or resolved in a habeas corpus petition. 6. During the course of arguments, a preliminary objection/issue has been raised by the learned counsels appearing for the respondents that instant petition is not maintainable because earlier a similar petition on same 4 set of facts, on same subject-matter and on the same relief was filed, which was dismissed as withdrawn that too without any liberty to file fresh one on same set of facts and on same cause of action. Reference in this regard is made to Srikant vs. District Magistrate, Bijapur (2006) 1 SCC 486, and Ramesh Chandra Sankla & ors vs. Vikram Cement & ors (2008) 14 SCC 58. 7. The earlier petition, viz. petition under section 491 of Cr.P.C. bearing No.09 of 2006, contained the following facts made by petitioners therein: “1. That the petitioners are the fathers of Ishfaq Ahmad Bhat Bashir Ahmad Lone and Bashir Ahmad Mir (hereinafter called the detenues) who are in the custody of the respondent No.2 and respondent No.3 as such being interested in the life liberty of their childrens and file present Petition on their behalf. 2. That detenues came across the boarder along with some other 9 persons and surrendered before respondent No.2 of whom Mr. Kataria was the Brigadier at that time and the Childrens of the petitioners were possessing the identity cards sealed and signed by the respondent No.2 of which the Petitioners are family about. 3. That the detenues after their surrender before respondent No.2 were working with respondent No.3 of whom Mr. Dogra was the Inspector of that time. 4. That the detenues were made to surrender by one of the persons out of those eleven namely Abdul Majid Lone s/o Mohammad lone R/o Budnambal Kupwara who is booked under PSA and is behind the bars at Kotbalwa. 5. That the petitioners used to see the detenues from May 2004 to November 2004 at Chowkibal and Budnambal in the houses of Abdul Rashid Khan R/o Chowkibal Radi and Nazir Ahmad Lone S/o Mohamad Lone R/o Budnambal through Abdul Majid Lone mentioned above presently under detention and it will be worthwhile to mention over here that such detenues were utilized by the respondent NO.2 and 3 for their own work regarding the eradication of the militancy in the valley. 6. That from December 2004 onwards the whereabouts of the detenues are not known despite the repeated requested of the parents forming the petitioners above which makes them to apprehend something different towards the respondent No.2 and 3. 7. That after getting worried about the life and liberty of the detenues a press release came to be issued in the month of October 2005 8. When aforementioned petition, viz. 491 no.09 of 2006, came up for consideration on 11.07.2006, counsel appearing for petitioner made a 5 statement at the Bar that he did not want to press the writ petition. His statement was taken on record and the petition was dismissed as not pressed. It is noteworthy to reproduce the said order hereunder: “Learned counsel for the petitioner stated at eth bar that he does not want to press the petition. His statement is taken on record. Accordingly petition is dismissed as not pressed.” 9. It is vibrantly evident from order dated 11.07.2006, that liberty has not been sought for and/or granted by the Court. However, when we go through instant writ petition, contrarily it is stated in para 11 that petitioners were constrained to file petition under Section 491 of Cr.P.C. bearing No.09 of 2006, which they withdrew with liberty to file a fresh. It would be proper to again reproduce para 11 hereunder: “11. That despite all the efforts the petitioners could not succeed in getting the necessary FIRs lodged against the respondent No. 3 and 4 before the SHO concerned for which the petitioners were constrained to file Petition under section 491 of Cr.P.C. bearing No. 09 of 2006 which stands withdrawn with the liberty to file a fresh.” 10. There is no gainsaying that petitioners have made a false statement in the instant writ petition vis-à-vis withdrawal of earlier petition on same subject-matter with a claim that liberty had been given to them to file a fresh petition on same subject-matter. In such situation, instant writ petition is not maintainable. 11. The Supreme Court has underscored that if a subsequent petition merely rehashes previously considered grounds without introducing new evidence or perspectives, it could fall foul of res judicata. The key determinant is the substance of the arguments rather than their form; superficial alterations without substantive differences do not suffice. The principle underlying Rule 1 to Order XXIII CPC that when plaintiff 6 once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. 12. In P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725 the Supreme Court held, “abandonment of right is much more than mere waiver, acquiescence or laches… waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege.” The Supreme Court put the law pithily by expressing “There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one’s as a right at time of waiver.” 13. Law of abandonment is based upon the maxim “invito beneficium non datur”, which means law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right would lose it. Where a petitioner withdraws a writ petition filed by him in the High Court under Article 226/227 without permission to institute a fresh petition, he should be deemed to have abandoned the remedy under the said Articles in respect of the cause of action relied on in writ petition and barred from filing a fresh petition. The principle embodied in Rule 1 to Order XXIII of the Code is founded on public policy. It is not the same as the rule of res judicata, which applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit, there is no prior adjudication of a suit nor an issue is involved. The plaintiff is precluded from instituting any fresh suit in respect of the same subject matter to prevent the abuse of the process of the Court. 7 Reference in this regard is being had to Sarguja Transport Service vs. STAT, (1987) 1 SCC 5. 14. The law is settled that when a petition is dismissed as withdrawn without the liberty to file a fresh one, the subsequent petition on the same subject matter is not maintainable. The petitioner is generally precluded from filing another writ petition on the same subject matter. This principle is derived from the analogy to Order XXIII Rule 1 of the Code of Civil Procedure, which reads as under: “1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff. 15. It may be reiterated here that once a petition is withdrawn without seeking liberty to file fresh on same subject matter, the petitioner is precluded from instituting any fresh petition in respect of such subject- 8 matter or such part of the claim. A petition cannot be instituted again after it is withdrawn without permission given by the court because withdrawal of petition without seeking or obtaining the court’s leave to file a fresh petition, the petitioner is deemed to have abandoned the remedy for that particular cause of action before that court. This principle is applied as a matter of public policy to prevent abuse of the judicial process, discourage forum shopping and avoid multiplicity of litigation on the same subject-matter. The rationale is that the petitioner having chosen to withdraw, waives the right to re-agitate the same issue. Even 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. Refer Srikant (supra). 16. It is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is inbuilt in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently innocent person not to be subject to prosecution on the basis of wholly untenable complaint. Reference is made to Ravinder Singh v. Sukhbir Singh and others (2013) 9 SCC 245. 17. It is open to the petitioner to withdraw a petition filed by him. Generally, a court of law would not prevent him from withdrawing his 9 petition, but if such withdrawal is without the leave of the court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start a fresh round of litigation and the court will not allow him to reagitate the claim which he himself had given up earlier. Refer para 61 of Ramesh Chandra Sankla (supra). 18. In the case in hand, petitioners have earlier on same subject-matter and cause of action withdrew their petition that too without securing liberty. However, in para 11 of instant petition they claim that liberty was given to them, which is contrary to the record on the file and amounts to suppression and concealment of facts as well. Thus, the writ petition is not maintainable and is, accordingly, dismissed. 19. Record, if any, be returned/sent down. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 15.07.2025 Qazi Amjad, Secy Whether approved for reporting? Yes/No.