SANJAY KUNDUversusREGISTRAR GENERAL, HIGH COURT OF HIMACHAL PRADESH & ORS

                   [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

* Author
[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.
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                         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”.
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       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
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       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
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       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
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       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 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.
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.