SUPREME COURT STAYS HIMACHAL PRADESH HIGH COURT’S ORDER TO RELOCATE SENIOR IPS OFFICER FROM DGP POSITION

INTRODUCTION

A three-Judge Bench of the Supreme Court comprising of Justice Dr Dhananjaya Y Chandrachud, Justice J. B. Pardiwala and Justice Manoj Misra passed an Order dated 14.01.2024 in Special Leave Petition (Criminal) No. 550-551 2024 in Sanjay Kundu Vs. Registrar General, High Court of Himachal Pradesh & Ors and set aside the Order dated 26.12.2023 of the High Court transferring Himachal Pradesh DGP.

FACTS

i) The proceedings before the High Court were initiated on an email from Mr. Nishant Kumar Sharma (Complainant), addressed to the Chief Justice of the High Court through the Registrar General.

ii) 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.

iii) According to his email, the Complainant was a resident of Palampur in District Kangra of Himachal Pradesh. The Complainant’s family owns a hotel in Palampur.

iv) A relative of “Y” had invested in the company of the Complainant. The Complainant alleged that “Y” had been pressurizing him and his father through “X” to sell their shares in their company.

v) That “Y” had threatened the auditors and obstructed the company’s functioning. The Complainant alleged that he had escaped an assault on 25.08.2023 in Gurugram.

vi) That the allegations were that he was receiving phone calls from the office of the Petitioner who is the Director of General Police (DGP), Himachal Pradesh at the behest of “Y”.

vii) Further, allegedly, the Complainant received a WhatsApp message from SHO Palampur stating that the Petitioner wished to speak with him and that the Complainant must call back on a particular number.

viii) That when the Complainant contacted the DGP, the DGP insisted the Complainant comes to Shimla to meet him.

ix) The email also stated 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.

x) That there was an FIR registered in respect of this Complaint in relation to this incident that transpired in Mcleodganj.

xi) Further, on 09.11.2023, the High Court suo moto 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.

xii) That on 10.11.2023 the High Court issued a Notice, and directed two SPs to file status reports and appointed an amicus curiae.

xiii) The status reports were filed on 16.11.2023 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 28.10.2023.

xiv) Further, on 16.11.2023 FIR No. 55/2023 was registered by the Mcleodganj Police Station for offenses punishable under Section 341 of the Indian Penal Code, 1860 (Punishment for Wrongful Restraint), Section 504 of IPC (Intentional insult with intent to provoke breach of the peace), and Section 506 of IPC (Punishment for criminal intimidation) read with Section 34 of IPC(Acts done by several persons in furtherance of common intention), after the registration of the Criminal Writ Petition before the High Court.

xv) That the status submitted by SP Kangra indicated that the Complaint had addressed an email to her on 06.11.2023 stating that they 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 Section 299 of IPC (Culpable homicide), Section 469 of IPC (Forgery for purpose of harming reputation), Section 499 of IPC (Defamation) and Section 505 of IPC (Statements conducing to public mischief) of the IPC was registered on a Complaint made by the Petitioner to the SHO, Police Station East, District Shimla.

xvi) The status report of the SP Shimla indicated that there were telephonic conversations between the Petitioner and the Complainant. Moreover, on 27.10.2023 which was the date on which the incident was 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 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.

xvii) 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 27.11.2023 for offences under Sections 323, 506 read with Section 34 of the IPC at Police Station, Sector 9, Gurugram on the Complaint lodged on 25.08.2023 by the Complainant.

xviii) 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 16.11.2023 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:

1) Had been in touch with “Y”, the alleged business partner of the Complainant;

2) Had made 15 missed calls in an effort to contact the Complainant on 27 October 2023;

3) 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;

4) Placed the Complainant under surveillance; and

5) Lodged FIR No 98/2023 on 4 November 2023 against the Complainant.

xix) The High Court observed that there is a real possibility that the investigation would not be carried on fairly. The Court, then 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.

xx) The Petitioner was neither impleaded in the proceedings nor was he heard before the above Order was passed on 26.12.2023.

xxi) Aggrieved by the Order dated 26.12.2023 passed by the High Court, the Petitioner, i.e., the DGP, challenged it in a Special Leave Petition (Criminal) No. 550-551 2024 before the Supreme Court.

ANALYSIS

1) The principal grievance urged before the Supreme Court was that the Petitioner was directly affected by the Order of the High Court dated 26.12.2023, but he was neither made a party to the proceedings nor was he furnished a Notice of the proceedings.

2) The Supreme Court permitted the Petitioner to move an Application for recall of the High Court’s Order dated 26.12.2023. 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 pursuant to the High Court’s directions posting the Petitioner as Principal Secretary (Ayush), Government of Himachal Pradesh.

3) The Supreme Court observed that both Petitioner and Complainant had no objection if the investigation were to be transferred to the Central Bureau of Investigation to obviate any allegation of interference at the behest of the Petitioner.

4) The Supreme Court observed that it was admitted before the High Court on behalf of the Petitioner that he had requested the Complainant to come to Shimla.

5) 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 a private civil dispute. The High Court further observed 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 landline number of the Petitioner.

6) 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.

7) The Supreme Court had observed in its previous Order dated 03.01.2024, 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 had opposed the transfer of the investigation. Bearing in mind the principles laid down by the Apex 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.

8) The Apex Court further observed that how the High Court had taken up the matter ex parte and issued the directions transferring the Petitioner out of the post of the DGP had to be addressed.

9) That the proceedings were triggered by an email addressed by the Complainant to the Chief Justice of the Himachal Pradesh, High Court, imputing allegations of the misuse of his official position as DGP, against the Petitioner. The allegations that were levelled by the Complainant were that the Petitioner, in his official capacity, intervened in a civil dispute and attempted to use his office to intimidate the Complainant. The allegations were serious and formed the basis of the Order that the High Court originally passed on 26.12.2023.

10) The Apex Court observed that 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 impermissible. As a serving police officer, the Petitioner was subject to the disciplinary control that was wielded over him in terms of the rules governing service. The High Court had 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.

11) That the Order dated 03.01.2024, 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 26.12.2023.

12) The correct course of action for the High Court would have been to recall its ex parte Order dated 26.12.2023 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, relied on the status report submitted by the SP, Shimla on 04.01.2024. The High Court had, in the course of its Order, also relied on the earlier status reports which were referred to in its Order dated 26.12.2023.

13) The High Court had directed the State Government to consider constituting a Special Investigation Team (SIT) so that an objective and fair investigation could take place. The High Court had directed that the SIT shall consist of IG-level officers who would probe all aspects of the matter including the FIRs which gave rise to the proceedings before it. Subsequently, the High Court had directed that the State Government should consider granting adequate protection to the Complainant and his family. The Supreme Court held that they would not alter either of these two findings by the High Court.

14) That, 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 26.12.2023 which stands affirmed by the Order.

SUPREME COURT ORDER

The Supreme Court directed the High Court Order to be set. The Supreme Court held that the Petitioner shall exercise no control whatsoever in respect of the investigation which was to be carried out by the Special Investigation Team. Instead of and in place of the direction of the High Court requiring the State Government to consider constituting an SIT, the Court issued 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 investigation. The State Government was directed to provide adequate security to the Complainant and the members of his family and to continue to do so based on its evaluation of the threat perception. The Court further clarified that since the investigation was to be carried out by the SIT, the Court shall not express any opinion on the merits of the allegations which shall be duly investigated in accordance with law. The Special Leave Petitions, namely four, were disposed off accordingly.

Kartik Khandekar

Associate

The Indian Lawyer