‘Manifest miscarriage of procedural justice’: Apex Court sets aside Himachal Pradesh High Court order directing that state DGP be shifted out from the post for ‘overstepping his authority’ by intervening in private civil dispute
Chief Justice D.Y. Chandrachud, Justices J.B. Pardiwala & Manoj Misra [12-01-2024]

Read Order: Sanjay Kundu v. Registrar General, High Court of Himachal Pradesh & Ors [SLP (CRIMINAL) No. 550-551 2024-SC]

Tulip Kanth

New Delhi, January 19, 2024: In a case where the complainant alleged that the petitioner, IPS officer Sanjay Kundu, in his official capacity, intervened in a civil dispute and attempted to used his office to intimidate the complainant, the Supreme Court has set aside the Officer’s transfer order. However, the Top Court confirmed the Himachal Pradesh High Court’s decision to grant adequate protection to the complainant and his family.

The proceedings, in this matter, before the High Court of Himachal Pradesh were initiated on an email from one 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.

According to his email, the complainant and his family conducted a hotel in Palampur. A relative of Y had invested in the company of the complainant. He alleges that Y had been pressurizing him and his father through X to sell their shares in their company. 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.

On November 9, 2023, the High Court suo motu registered a Criminal Writ Petition pursuant to the email. The State of Himachal Pradesh, Superintendent of Police, Kangra and Superintendent of Police, Shimla were arrayed as respondents. Thereafter, an  FIR was registered by the Mcleodganj Police Station for offences punishable under Sections 341, 504 and 506 read with Section 34 of the Indian Penal Code (IPC). The High Court observed that the petitioner, who is a public servant, had overstepped his authority by intervening in what was clearly a private civil dispute. 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.

The SLP before the Top Court stemmed from the rejection of the petitioner’s recall application. The High Court has dismissed it and directed the State Government to consider within a week, forming a Special Investigation Team (SIT) 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. Through the impugned Order in question, the earlier order of the High Court directing that the petitioner should be shifted out of the post of DGP, Himachal Pradesh stood revived.

At the outset, the 3-Judge Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala & Justice Manoj Misra noted that the allegations which were levelled by the complainant were that the petitioner, in his official capacity, intervened in a civil dispute and attempted to used his office to intimidate the complainant. The allegations were apparently serious.

The High Court thus directed that the petitioner be moved to other posts to ensure a fair investigation. Noticing that in doing so, the High court assumed disciplinary jurisdiction over the petitioner, the Bench said, “ 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,”

According to the Bench, 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, it added.

The Bench further observed that 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 earlier status reports.

It was observed that 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”, it said.

However, the Top Court did not interfere with the Order directing the State Government to consider constituting an SIT so that an objective and fair investigation could take place and also directing the State Government to consider granting adequate protection to the complainant and his family.

The direction of the High Court directing the shifting out of the petitioner from the post of DGP was set aside. The Bench ordered that the petitioner would exercise no control whatsoever in respect of the investigation which is to be carried out by the Special Investigation Team.

“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”, the Top Court held while disposing of the SLP.