Setback to Himachal DGP, SP as HC rejects review pleas on transfer order

In a setback to Himachal Pradesh director general of police Sanjay Kundu and Kangra superintendent of police Shalini Agnihotri, the high court in Shimla dismissed their review petition on Tuesday seeking recall of its order of December 26, 2023, that directed their transfer so that they don't influence the probe into a businessman's complaint about the alleged threat to life.

The court also turned down their request for a Central Bureau of Investigation probe and directed the constitution of a Special Investigation Team consisting of officers of the inspector general level to coordinate investigations in all FIRs within two weeks.

Disapproving of the conduct of the two officers, a bench comprising Chief Justice MS Ramachandra Rao and Justice Jyotsna Rewal Dua said the "attempt of the DGP to settle the dispute seems to be a colourable exercise of his power and authority prima facie".

It said Kundu's "interference" in a civil dispute was "highly improper".

The bench also said there was "prima facie dereliction of duty" on Agnihotri's part.

An IPS officer with more than 10 years of service should have known the legal position in the email sent by the complainant that "she had no choice but to direct registration of an FIR, submit a report to the magistrate and then proceed to get it (complaint) investigated", the HC said.

It, however, reiterated that it was not expressing any opinion on the merits of the claims of the parties as the investigation is still not complete.

The bench had heard the arguments on the petition on January 5, 2024, and reserved the judgment.

The court also directed that adequate and effective security be provided to the complainant - Palampur business Nishant Sharma- and his family.

In his complaint filed on October 28, Sharma alleged a threat to him, his family and property from his business partners.

He had also questioned the conduct of Kundu, alleging the officer made phone calls to him, and asked him to come to Shimla.

Kundu had challenged the order of the high court directing his transfer and filed a Special Leave Petition in the Supreme Court, contending that he was not heard by this bench on the allegations made against him in the email of October 28, 2023, by Nishant Sharma.

An apex court bench headed by Chief Justice DY Chandrachud had on January 3 granted liberty to Kundu to move the high court to seek recall of its December 26 order.

The bench had ordered a stay on the January 2, 2024 order of the state posting Kundu as Principal Secretary (Ayush), pending the high court's decision on the recall application.

The SC also directed the high court to decide the recall application within two weeks.

In its Tuesday order, the high court questioned the conduct of the two officers.

"How a senior police officer like Sanjay Kundu, who ought to be aware of the legal position that his interference in a civil dispute between shareholders of a private company is highly improper, thought that he should intervene and mediate between K D Shreedhar and Nishant Sharma (with whom he had no prior acquaintance) and settle their disputes", the order said.

This conduct cannot be said to be within his line of duty prima facie, the court.

Moreover, Shreedhar is admittedly a senior advocate practicing in this High Court of Himachal Pradesh with considerable knowledge and experience and is not a poor man suffering any disadvantage, the court said.

Shreedhar can certainly avail remedies available to him at law to resolve his disputes with Nishant Sharma and his father and does not need Sanjay Kundu's intervention, the court said.

Rejecting the plea of Shalini Agnihotri, the high court observed, "Surely, an IPS officer with more than 10 years of service knows this legal position that in case the email of October 28, 2023 sent by Nishant Sharma disclosed commission of the cognisable offence under section 341 IPC, she had no choice but to direct registration of an FIR, submit report to the Magistrate and then proceed to get it investigated".

The court noted that there was prima facie a dereliction of duty on her part as she had no authority in law to have a preliminary enquiry done in respect of information about the commission of a cognisable offence contained in the complaint.

"The conduct of Shalini Agnihotri cannot be viewed with lenience as she has not shown the needed sensitivity, urgency and prompt action throughout and therefore we see no reason to recall our order of December 26, 2023,' the high court held.

The court also rejected the plea of Kundu and Agnihotri to get the FIRs investigated by the Central Bureau of Investigation and agreed with the contention of the advocate general and amicus curiae that the instant case does not fall in the category of cases which would require investigation by the CBI.

Earlier, a defamation case was registered against Nishant Sharma on the complaint of the DGP who alleged that he was harming the officer's reputation and attempting to malign his image.