* Author
[2024] 1 S.C.R. 442 : 2024 INSC 43
Sanjay Kundu
v.
Registrar General, High Court of
Himachal Pradesh & Ors
(Special Leave Petition (Criminal) No 550-551 2024)
12 January 2024
[Dr Dhananjaya Y Chandrachud*, CJI, J B Pardiwala
and Manoj Misra, JJ.]
Issue for Consideration
The proceedings before the High Court were initiated on an
email from complainant, addressed to the Chief Justice of the
High Court. The High Court suo motu registered a Criminal Writ
Petition pursuant to the above email. The High Court directed that
the petitioner herein, who is holding the post of DGP, and the SP,
Kangra should be moved to any other post to ensure that a fair
investigation takes place. The petitioner was neither impleaded
in the proceedings nor was he heard before the above order was
passed. On that ground, the petitioner challenged it in a Special
Leave Petition before the Supreme Court.
Headnotes
Administration of Justice – Miscarriage of procedural justice
– The principal grievance urged was that the petitioner was
directly affected by the order of the High Court, but he was
neither made a party to the proceedings nor was he furnished
a notice of the proceedings – The Supreme Court permitted to
file application for recall of the High Court’s order (26.12.2023)
– The High Court dismissed the application – SLP filed by the
petitioner for recall of the order of the High Court:
Held: Earlier, when the Supreme Court permitted the petitioner to
move an application for recall of the High Court’s order, the directions
of the High Court for transfer of the petitioner were stayed – The
Court also stayed the order issued pursuant to the High Court’s
directions posting the petitioner as Principal Secretary (Ayush),
Government of Himanchal Pradesh – However, the High Court
[2024] 1 S.C.R. 443
Sanjay Kundu v. Registrar General, High Court of
Himachal Pradesh & Ors
dismissed the recall application and directed the State to consider
forming a Special Investigation Team consisting of IG level officers
to coordinate the investigation in all the FIRs and to advise the
government on providing effective security to the complainant and
his family – In the instant case, the correct course of action for
the High Court would have been to recall its ex parte order and
to commence the proceedings afresh so as to furnish both the
petitioner and the complainant and other affected parties including
the SP, Kangra, an opportunity to place their perspectives before
it – Instead, the High Court, while deciding the recall application,
heavily relied on the status report submitted by the SP, Shimla
– The impugned order suffers from a patent error of jurisdiction –
The order was passed without compliance with the principles of
justice, especially, the principle of audi alteram partem – The order
dated 26.12.2023 had serious consequences, and it was passed
without hearing the petitioner who stood to be affected by it – A
post-decisional hearing of the kind conducted by the High Court
lacks fresh and dispassionate application of mind to the merits of
the recall application, and is for that very reason, likely to cause
disquiet – Thus, the direction of the High Court directing the shifting
out of the petitioner from the post of DGP is set aside – However,
the directions of the High Court to consider constituting an SIT
and grant of protection to the complainant and his family are not
disturbed – Instead of and in place of the direction of the High
Court requiring the State Government to consider constituting an
SIT, the State is directed to do so – The SIT shall consist of IG
level officers who shall not report to the petitioner for the purpose
of the investigation. [Paras 33, 34, 36, 37]
List of Keywords
Administration of Justice; Principles of justice; Miscarriage of
procedural justice; Error of jurisdiction; Audi alteram partem.
Case Arising From
EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
Petition (Criminal) Nos. 550-551 of 2024.
From the Judgment and Order dated 09.01.2024 of the High Court
of Himachal Pradesh at Shimla in CRMP No.79 of 2024 and CRWP
No.14 of 2023.
444 [2024] 1 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Mukul Rohtagi, Sr. Adv., Gagan Gupta, Arkaj Kumar, Padmesh Mishra,
Ms. Ranjeeta Rohatgi, Ms. Tanya Aggarwal, Rushab Aggarwal,
Aakarsh Mishra, Advs. for the Petitioner.
Rahul Sharma, Ms. Rashmi Malhotra, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
1. Application for impleadment is allowed. Mr Nishant Sharma,
complainant, shall be added as a respondent to these proceedings.
Mr Rahul Sharma, counsel appears along with Ms Rashmi Malhotra,
counsel on behalf of the newly added respondent.
2. These proceedings emanate from an order of a Division Bench of
the High Court of Himachal Pradesh dated 9 January 2024.
Criminal Writ Petition and proceedings before the High Court
3. The proceedings before the High Court were initiated on an email
from Mr Nishant Kumar Sharma, addressed to the Chief Justice
of the High Court through the Registrar General. The complainant
alleged in his email, that he was facing threats emanating from two
persons - “X”, a former IPS officer and “Y”, a practicing advocate.
4. According to his email, the complainant is a resident of Palampur,
in District Kangra of Himachal Pradesh. His family conducts a hotel
in Palampur. A relative of “Y” had invested in the company of the
complainant. He alleges that “Y” has been pressurizing him and
his father through “X”to sell their shares in their company. “Y” was
stated to have threatened the company’s auditors, and obstructed
its functioning. The complainant alleged that he had escaped an
assault on 25 August, 2023 in Gurugram. The allegation was that
he was receiving phone calls from the office of the petitioner, who
is the Director General of Police1
, Himachal Pradesh at the behest
of Y. Allegedly, the complainant received a WhatsApp message from
the SHO, Palampur stating that the petitioner wished to speak to him
1 “DGP”.
[2024] 1 S.C.R. 445
Sanjay Kundu v. Registrar General, High Court of
Himachal Pradesh & Ors
and that he must call back on a particular phone number. When the
complainant established contact, he was connected to the petitioner,
who insisted that the complainant come to Shimla to meet him. The
email detailed criminal complaints filed by him in Gurugram after
an alleged attack on him, and subsequent instances of intimidation
to compel him to withdraw them. No FIR was registered in respect
of this complaint and a later complaint filed by the complainant in
relation to an incident that transpired in Mcleodganj.
5. On 9 November 2023, the High Court suo motu registered a Criminal
Writ Petition pursuant to the above email. The State of Himachal
Pradesh, Superintendent of Police, Kangra and Superintendent
of Police, Shimla were arrayed as respondents. On 10 November
2023, the High Court issued notice, directed the two SPs (Kangra
and Shimla) to file status reports and appointed an amicus curiae.
6. Status reports were filed on 16 November 2023 before the High
Court. The Advocate General assured the High Court that an FIR
would be registered on the complaint lodged by the complainant
on 28 October, 2023. On 16 November 2023, FIR No 55/2023 was
registered by the Mcleodganj Police Station for offences punishable
under Sections 341, 504 and 506 read with Section 34 of the Indian
Penal Code2
, after the registration of the criminal writ petition before
the High Court.
7. The status report submitted by the SP Kangra indicated that the
complainant had addressed an email to her on 06 November 2023
stating that he had received a phone call intimating him that an FIR
(No. 98/2023) had been registered against him at Shimla. The status
report submitted by SP, Shimla, stated that the said FIR 98/2023,
under Sections 299, 469, 499 and 505 of the IPC was registered
on a complaint made by the petitioner to the SHO, Police Station
East, District Shimla.
8. The status report of the SP Shimla indicated that there were telephonic
conversations between the petitioner and the complainant. Moreover,
on 27 October 2023 which is the date on which the incident is alleged
to have taken place at Mcleodganj, there were 15 missed calls from
the office land line numbers of the petitioner to the complainant. Shortly
2 “IPC”.
446 [2024] 1 S.C.R.
Digital Supreme Court Reports
after the complainant refused to come to Shimla at the instance of
the petitioner, he was accosted by two persons at Mcleodganj who
called upon him to withdraw the complaint at Gurugram. The status
report found prima facie evidence of extortion, use of criminal force
to constrain the complainant to settle a civil dispute between him
and “Y” and abuse of the office of the petitioner, as DGP of Himachal
Pradesh.
9. A subsequent status report filed by the SP Shimla stated that
an Additional Superintendent of Police was placed in charge of
investigating FIR No 55 of 2023 filed by the complainant, in place
of the DSP. Another status report indicated that FIR No 350/2023
was registered on 27 November 2023 for offences under Sections
323, 506 read with Section 34 of the IPC at Police Station, Sector
9, Gurugram on the complaint lodged on 25 August 2023 by the
complainant.
10. On 21 December 2023, the Advocate General, appearing on behalf
of the State of Himachal Pradesh, submitted that the investigation
was being carried out uninfluenced by the office of the DGP. The
High Court flagged its concern at that stage in the following terms :
“(i) there is material detected in the investigation, as
pointed out in the status report of the respondent
No.3, which showed that the Director General of
Police had also been in continuous contact with Y,
the alleged business partner of the complainant (with
whom the complainant has disputes);
(ii) the Director General of Police had put the complainant
under surveillance;
(iii) that Director General of Police also made missed calls
on 27.10.2023 (the date of incident on Mcleodganj
alleged by the complainant) to the complainant’s
mobile phone and also spoke to him on that day; and
(iv) the Director General of Police had himself got
registered an FIR No.98/2023 dt. 4.11.2023 under
Sections 299, 469, 499 and 505 IPC against the
complainant.”
[2024] 1 S.C.R. 447
Sanjay Kundu v. Registrar General, High Court of
Himachal Pradesh & Ors
11. The High Court observed that in the backdrop of the status report,
the FIR registered at the behest of the petitioner, the surveillance of
the complainant and communication between the petitioner and the
complainant, the failure of the Police to act on the complaint was not
explained by the SP, Kangra. It noted that the FIR was registered
belatedly on 16 November 2023 only after the Court had entertained
the Writ Petition. The High Court then proceeded to observe that
the material collected by the SP, Shimla indicated prima facie that
the Director General of Police:
(i) Had been in touch with “Y”, the alleged business partner of
the complainant;
(ii) Had made 15 missed calls in an effort to contact the complainant
on 27 October 2023;
(iii) Had spoken to the complainant on 27 October 2023 and after
he refused to come to Shimla, the complainant was threatened
in an incident at Mcleodganj;
(iv) Placed the complainant under surveillance; and
(v) Lodged FIR No 98/2023 on 4 November 2023 against the
complainant.
12. The High Court observed that there is a real possibility that the
investigation would not be carried on fairly. It accordingly directed
that the petitioner, who is holding the post of DGP, and the SP,
Kangra should be moved to any other post to ensure that a fair
investigation takes place.
13. The petitioner was neither impleaded in the proceedings nor was
he heard before the above order was passed. On that ground, the
petitioner challenged it in a Special Leave Petition before this Court.
14. The principal grievance urged before this Court was that the petitioner
was directly affected by the order of the High Court dated 26 December
2023, but he was neither made a party to the proceedings nor was
he furnished a notice of the proceedings.
15. This Court permitted the petitioner to move an application for recall
of the High Court’s order dated 26 December 2023. The recall
application was directed to be disposed of within a period of two
weeks and until then, the directions of the High Court for transfer of
the petitioner were stayed. This Court also stayed the order issued
448 [2024] 1 S.C.R.
Digital Supreme Court Reports
pursuant to the High Court’s directions posting the petitioner as
Principal Secretary (Ayush), Government of Himanchal Pradesh.
16. This Court recorded that both petitioner and complainant had no
objection if the investigation were to be transferred to the Central
Bureau of Investigation3
so as to obviate any allegation of interference
at the behest of the petitioner.
The present Special Leave Petition:
17. The present SLP stems from the rejection of the petitioner’s recall
application mentioned above. The High Court has dismissed it and has
directed the State Government to consider within a week, forming a
Special Investigation Team4
consisting of IG level officers to coordinate
the investigation in all the FIRs and to advise the government on
providing effective security to the complainant and his family.
18. By the impugned order, the High Court also rejected an application
filed by the SP Kangra, to implead her and to recall its earlier order
dated 26 December 2023 by which she was also directed to be moved
out of the post. Though the State Government had implemented
the order of the High Court against the petitioner, it has not been
implemented against SP, Kangra yet.
19. Before the High Court, it was admitted on behalf of the petitioner that
he had requested the complainant to come to Shimla. The case of the
petitioner was that he was contacted by a senior advocate (referred
to as “Y”) who had a dispute in regard to business transactions with
the complainant. Allegedly, the dispute had taken an ugly turn when
scandalous allegations were made by the complainant against “Y”,
following which, on 9 October 2023, an email was addressed by “Y”
to the petitioner to take action against the complainant. The petitioner
admitted that in pursuance of the email, on 27 October 2023, he
asked his Private Secretary to contact the complainant through his
official land line. The petitioner states that he was informed that
the complainant could not be reached despite repeated attempts.
Eventually, on 27 October 2023, the complainant made a call to
the petitioner and when he was requested to come to Shimla, he
declined to do so on the ground that he was travelling out of India.
3 “CBI”.
4 “SIT”.
[2024] 1 S.C.R. 449
Sanjay Kundu v. Registrar General, High Court of
Himachal Pradesh & Ors
20. On the other hand, it is the complainant’s case that “Y” has been
using his connections so as to intimidate the complainant into selling
his shares in his company. Having failed in the takeover bid, “Y” has
resorted to threatening the complainant and his family, through the
petitioner.
21. The High Court observed that while it could not decide on the rival
contentions, the petitioner, who is a public servant, had overstepped
his authority by intervening in what was clearly a private civil dispute.
The High Court noted that the status report submitted by the SP Shimla
indicated the continuing contact of “Y” with the petitioner between
September and November 2023 and that the SHO, Palampur had
approached the complainant requiring him to call up the land line
number of the petitioner. The High Court observed that the petitioner
had admitted in his recall application to having placed the hotel run by
the complainant under surveillance for alleged drug running activities
in September 2023.
22. The status report filed by the SP Shimla on 4 January 2023 alleged
that the petitioner was intimidating in his conduct towards the
Investigating Officer handling the case initiated by FIR No. 98/2023
filed at the instance of the petitioner against the complainant. The
status report stated that the conduct of the petitioner raised suspicion
about his role in the alleged offences against the complainant. When
the petitioner was confronted with this status report of the SP, Shimla,
the petitioner imputed mala fide intentions to the said officer.
23. Before proceeding further, it is necessary to note the submissions
which have been urged by Mr. Mukul Rohatgi, senior counsel
appearing for the petitioner in relation to the imputations against
the SP, Shimla. A blast is alleged to have taken place on 18 July
2023 in Shimla resulting in the loss of two lives and injury to several
others. The blast was investigated under the supervision of the
SP Shimla who, according to the petitioner, sought to cover it up
as an accidental blast of an LPG cylinder. The petitioner is stated
to have addressed a communication to the Additional Secretary in
the Union Ministry of Home Affairs requesting an investigation by
the National Bomb Data Centre of the National Security Guard. In
subsequent communications to the Chief Secretary on 10 August
2023 and 1 September 2023, the petitioner alleged negligence in
the post-blast investigation by the SP Shimla and requisitioned the
450 [2024] 1 S.C.R.
Digital Supreme Court Reports
NSG for investigation, suspecting the use of an IED including RDX
which was allegedly detected at the site of the blast.
24. In this backdrop, the petitioner has alleged that the SP Shimla was
on inimical terms arising out of his communications to the State
Government in regard to SP Shimla’s handling of the blast.
25. The Advocate General has opposed the plea of the petitioner for
recalling the order and opposed the allegations levelled by the
petitioner against the SP Shimla.
26. This court had noted in its previous order dated 3 January 2024,
that counsel for both the complainant as well as the petitioner are
agreeable to the transfer of the investigation to the CBI. The High
Court noted that the Advocate General has opposed the transfer of
the investigation. Bearing in mind the principles laid down by this
court - that the power to transfer an investigation to an outside agency
is to be exercised with circumspection - the High Court rejected the
plea for transfer of the investigation to the CBI.
Analysis
27. The case has travelled to this Court once again arising out of the
rejection of the application filed by the petitioner for recall of the
earlier order of the High Court.
28. The consequence of the impugned order is that:
(i) The earlier order of the High Court directing that the petitioner
should be shifted out of the post of DGP, Himachal Pradesh
stands revived;
(ii) The State Government has been directed to consider forming
a Special Investigation Team consisting of IG level officers to
coordinate the investigation of all the FIRs; and
(iii) The grant of protection to the complainant has been directed
to be evaluated by the Government.
29. We have heard Mr Mukul Rohatgi, senior counsel appearing on
behalf of the petitioner and Mr Rahul Sharma, counsel appearing
on behalf of the newly added respondent-complainant.
30. At the outset, we must express our reservations about the manner
in which the High Court took up the matter ex parte and issued
directions transferring the petitioner out of the post of DGP in the first
[2024] 1 S.C.R. 451
Sanjay Kundu v. Registrar General, High Court of
Himachal Pradesh & Ors
instance. The proceedings were triggered by an email addressed by
the complainant to the Chief Justice imputing allegations of the misuse
of his official position as DGP against the petitioner. The allegations
which were levelled by the complainant are that the petitioner, in
his official capacity, intervened in a civil dispute and attempted to
used his office to intimidate the complainant. The allegations are
apparently serious and evidently formed the basis of the order that
the High Court originally passed on 26 December 2023.
31. Based on the status reports filed in the proceedings before it, the High
Court came to a prima facie conclusion that the investigation into the
FIRs could not be conducted fairly with the petitioner at the helm as
the DGP. The High Court thus directed that the petitioner be moved
to other posts to ensure a fair investigation. In doing so the High
court has assumed disciplinary jurisdiction over the petitioner. This
was clearly impermissible. As a serving police officer, the petitioner
is subject to the disciplinary control which is wielded over him in
terms of the rules governing service. The High Court has improperly
assumed those powers to itself without considering the chain of
administrative control in the hierarchy of the service. The State
Government shifted the petitioner as Principal Secretary (Ayush) in
compliance with the directions of the High Court. The consequence
of shifting out of an IPS officer has serious consequences. The order
was passed without an opportunity to the petitioner to contest the
allegations against him or to place his response before the Court.
There was thus a manifest miscarriage of procedural justice.
32. By this Court’s order dated 3 January 2024, the petitioner was
relegated to the remedy of a recall application before the High
Court since his grievance was the denial of an opportunity to be
heard before the High Court, before it passed the order dated
26 December 2023.
33. The correct course of action for the High Court would have been to
recall its ex parte order dated 26 December 2023 and to commence
the proceedings afresh so as to furnish both the petitioner and the
complainant and other affected parties including the SP, Kangra,
an opportunity to place their perspectives before it. Instead, the
High Court, while deciding the recall application, heavily relied on
452 [2024] 1 S.C.R.
Digital Supreme Court Reports
the status report submitted by the SP, Shimla on 4 January 2024.
The High Court has, in the course of its order, also relied on the
earlier status reports which were referred to in its order dated 26
December 2023.
34. The impugned order suffers from a patent error of jurisdiction. The
order was passed without compliance with the principles of justice,
especially, the principle of audi alteram partem. The order dated
26 December 2023 had serious consequences, and it was passed
without hearing the petitioner who stood to be affected by it. A postdecisional hearing of the kind conducted by the High Court lacks
fresh and dispassionate application of mind to the merits of the recall
application, and is for that very reason, likely to cause disquiet.
35. At this stage, we are desisting from expressing any opinion on the
allegations which are made against the petitioner or, for that matter,
the allegations that the petitioner has made against SP, Shimla. The
SP Shimla is not present before this Court. It is, therefore, necessary
to clarify that the submissions which have been made by the petitioner
earlier, as recorded above, have not been commented upon in the
course of this judgment.
36. The High Court has directed the State Government to consider
constituting an SIT so that an objective and fair investigation can
take place. The High Court has directed that the SIT shall consist
of IG level officers who will probe all aspects of the matter including
the FIRs which gave rise to the proceedings before it. Likewise, the
High Court has directed that the State Government should consider
granting adequate protection to the complainant and his family. We
are not disturbing either of these two findings by the High Court.
37. However, it would be inappropriate to maintain the order of the
High Court directing that the petitioner be shifted out of the post
of DGP in pursuance of the earlier order dated 26 December 2023
which stands affirmed by the impugned order. The above direction
of the High Court directing the shifting out of the petitioner from the
post of DGP is set aside. The petitioner shall exercise no control
whatsoever in respect of the investigation which is to be carried
out by the Special Investigation Team. Instead of and in place of
[2024] 1 S.C.R. 453
Sanjay Kundu v. Registrar General, High Court of
Himachal Pradesh & Ors
the direction of the High Court requiring the State Government
to consider constituting an SIT, we issue a direction to the State
Government to do so. The SIT shall consist of IG level officers who
shall not report to the petitioner for the purpose of the investigation.
The State Government is directed to provide adequate security to
the complainant and to the members of his family and to continue
to do so based on its evaluation of the threat perception. We clarify
that since the investigation is to be carried out by the SIT, we are
not expressing any opinion on the merits of the allegations which
shall be duly investigated in accordance with law.
38. The Special Leave Petitions are accordingly disposed of.
39. Pending applications, if any, stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case: SLPs disposed of.
