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Case Title – Sanjay Kundu vs. Registrar General, High Court of Himachal Pradesh & Ors.

Case No. – SLP (Crl.) No. 550-551 of 2024

Dated on – 12^th January, 2024

Quorum – Hon’ble CJI Dr. D.Y. Chandrachud, Hon’ble Justice J.B. Pardiwala and Hon’ble Justice Manoj Misra

Facts of the case –

An email was sent by Nishant Kumar Sharma to the Chief Justice of the Himachal Pradesh High Court. Sharma, a resident of Palampur, Kangra, alleged that he and his family were being threatened by “X,” a former IPS officer, and “Y,” a practicing advocate, to sell their shares in their company. Sharma’s family operates a hotel in Palampur, and “Y” is a relative who had invested in their company.

Sharma claimed that “Y” was pressuring him through “X” and using intimidation tactics, including threatening the company’s auditors and obstructing its functioning. He also alleged that he escaped an assault in Gurugram on August 25, 2023, and that he received phone calls from the office of Sanjay Kundu, the DGP of Himachal Pradesh, purportedly at “Y’s” behest. Sharma reported receiving a WhatsApp message from the SHO, Palampur, stating that Kundu wished to speak with him and insisted that he come to Shimla. Despite filing multiple criminal complaints, no FIR was initially registered. It was only after the High Court took suo motu cognizance of the email that an FIR was registered on November 16, 2023. The High Court, upon reviewing status reports, found prima facie evidence of abuse of power by Kundu and directed that he be transferred from his post to ensure a fair investigation.

Legal Provisions –

• Section 34 of IPC, 1860
• Section 323 of IPC, 1860
• Section 506 of IPC, 1860

Contentions of the appellant –

The appellant, Sanjay Kundu, contended that the High Court’s order directing his transfer from the post of DGP, Himachal Pradesh, was issued without affording him an opportunity to be heard, thereby violating the principles of natural justice. Kundu argued that the proceedings were initiated suo motu based on an email from the complainant, Nishant Kumar Sharma, without impleading him as a party or notifying him of the allegations.

Kundu admitted to having requested the complainant to come to Shimla, which he justified as an attempt to mediate a civil dispute at the behest of “Y,” a senior advocate. He maintained that his actions were misconstrued and that his official role was being wrongly implicated in a private business dispute between the complainant and “Y.” Kundu further submitted that the High Court had improperly assumed disciplinary jurisdiction by directing his transfer without due process, thereby bypassing the established administrative control and disciplinary mechanisms governing his service.

Additionally, Kundu raised concerns about the impartiality of the investigation led by the SP, Shimla, citing prior conflicts related to a blast investigation in Shimla. He alleged that the SP, Shimla, had an adversarial stance against him due to his intervention in the blast investigation, which he claimed was mishandled by the SP. Kundu emphasized that the High Court’s reliance on status reports from potentially biased officers compromised the fairness of the proceedings. Consequently, he sought the recall of the High Court’s order and a fresh hearing where he could present his defense.

Contentions of the respondent –

The respondent, Nishant Kumar Sharma, contended that Sanjay Kundu, in his capacity as DGP of Himachal Pradesh, abused his official position to intimidate and coerce the complainant into settling a private business dispute with “Y,” a senior advocate and business associate. Sharma alleged that Kundu’s actions were not only unauthorized but also constituted a misuse of power, as evidenced by persistent surveillance, intimidation through frequent missed calls, and attempts to force him to meet in Shimla.

The respondent argued that the High Court’s intervention was necessary due to the severity and persistence of the threats, which included a physical assault and subsequent intimidation to withdraw criminal complaints. Sharma asserted that Kundu’s influence prevented the local police from acting on his complaints until the High Court’s intervention. The respondent supported the High Court’s decision to transfer Kundu to ensure a fair and unbiased investigation, emphasizing the prima facie evidence of Kundu’s involvement in the alleged intimidation.

Sharma further contended that Kundu’s request for a recall of the High Court’s order was baseless, as the need for an independent and impartial investigation justified the initial ex parte decision. He maintained that the investigation by the SP, Shimla, was conducted with due diligence and that Kundu’s allegations of bias were unfounded and aimed at diverting attention from the substantive issues. The respondent urged the Court to uphold the High Court’s directives, including the formation of a Special Investigation Team (SIT) to probe the matter comprehensively.

Court Analysis and Judgement –

The Hon’ble Supreme Court of India addressed the legality of the High Court’s order directing the transfer of Sanjay Kundu, the Director General of Police (DGP) of Himachal Pradesh, amidst allegations of abuse of power and interference in a private dispute. The Court acknowledged that the High Court’s initial order was issued ex parte without affording Kundu an opportunity to present his side, thereby violating principles of natural justice. It criticized the High Court’s assumption of disciplinary jurisdiction over Kundu, emphasizing that such decisions should have been subject to established administrative procedures and due process within the framework of service rules.

The Supreme Court highlighted the seriousness of the allegations against Kundu, including surveillance and intimidation tactics allegedly employed against Nishant Kumar Sharma, the complainant. However, the Court found that the High Court’s reliance on status reports from potentially biased officers, without proper scrutiny or opportunity for rebuttal by Kundu, compromised procedural fairness. The Court noted Kundu’s admission to contacting Sharma in the course of his duties but disputed the characterization of these actions as improper interference in a private matter.

Ultimately, the Supreme Court set aside the High Court’s order directing Kundu’s transfer from the post of DGP. It directed the formation of a Special Investigation Team (SIT) comprising IG-level officers to conduct an impartial inquiry into the allegations against Kundu. The Court mandated that Kundu shall have no authority over this investigation to ensure its independence and impartiality. Additionally, the State Government was tasked with providing adequate security to Sharma and his family based on an assessment of threat perception. The judgment underscored the importance of procedural fairness and adherence to legal principles in disciplinary actions against public servants, while affirming the need for a thorough investigation into the allegations raised in the case.

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Judgement Reviewed by – Anurag Das