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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, MANOJ MISRA, JJ.
Sanjay Kundu – Petitioner
Versus
Registrar General, High Court of Himachal Pradesh and Others – Respondents
Special Leave Petition (Criminal) No. 550-551 of 2024
Decided On : 12-01-2024
Indian Penal Code, 1860 – Sections 341, 504 and 506 read with Section 34 – Constitution of India – Article 226 – Criminal Writ Petition – Alleged abuse of office by petitioner, as DGP of Himachal Pradesh – Allegations which were levelled by complainant are that petitioner, in his official capacity, intervened in a civil dispute and attempted to used his office to intimidate complainant – High Court directed that petitioner should be shifted out of post of DGP, Himachal Pradesh in interest of fair investigation and State Government has been directed to consider forming a Special Investigation Team consisting of IG level officers to coordinate investigation of all FIRs – High Court took up the matter ex parte and issued directions transferring petitioner out of post of DGP in first instance – Proceedings were triggered by an email addressed by complainant to Chief Justice imputing allegations of misuse of his official position as DGP against petitioner – As a serving police officer, petitioner is subject to disciplinary control which is wielded over him in terms of rules governing service – High Court has improperly assumed those powers to itself without considering chain of administrative control in hierarchy of service – Impugned order suffers from a patent error of jurisdiction – Order was passed without compliance with the principles of justice, especially, principle of audi alteram partem – Post-decisional hearing of the kind conducted by High Court lacks fresh and dispassionate application of mind to merits of recall application and is likely to cause disquiet – Direction of High Court directing shifting out of petitioner from post of DGP set aside – Petitioner shall exercise no control whatsoever in respect of investigation which is to be carried out by Special Investigation Team. (Paras 28, 30, 31, 34 and 37)
Facts of the case:
Proceedings before High Court were initiated on an email from Mr Nishant Kumar Sharma, addressed to Chief Justice of the High Court through Registrar General. Complainant alleged in his email, that he was facing threats emanating from two persons - “X”, a former IPS officer and “Y”, a practising Advocate. Principal grievance urged before this Court was that petitioner was directly affected by order of High Court dated 26 December 2023, but he was neither made a party to proceedings nor was he furnished a notice of proceedings.
Findings of Court:
Correct course of action 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 complainant and other affected parties including SP, Kangra, an opportunity to place their perspectives before it. Instead, High Court, while deciding recall application, heavily relied on status report submitted by the SP, Shimla on 4 January 2024.
JUDGMENT :
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 Digitally signed by 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 [“DGP”] 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 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 [“IPC”] 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 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 wi
High Court cannot assume such powers to itself without considering chain of administrative control in hierarchy of service.
The court emphasized the importance of thorough examination of allegations before transferring an investigation to CBI and highlighted the petitioner's failure to register an FIR or seek remedy under....
The accused has no right to dictate the investigating agency or method of investigation, and the plea of alibi must be substantiated with cogent evidence.
Prosecution of the petitioners was found to be malicious, lacking evidentiary basis for allegations of abduction and threats, leading to the quashing of FIRs under Section 482 CrPC.
Once the matter was in seisin of the High Court, nothing could and ought to have been undertaken without its express leave.
Court held that state police investigation indicated bias; thus, CBI should investigate to ensure impartiality in serious allegations involving high-profile figures.
(1) Even at interim stage, High Court must demonstrate an application of mind and furnish reasons for issuing any interlocutory direction, which is capable of being tested before this Court in an app....
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