Supreme Court Stays Himachal Pradesh HC's Order To Relocate Senior IPS Officer From DGP Position

Following the High Court's direction of December 26, 2023, an order transferring Kundu as the state's Ayush department principal secretary was issued by the Himachal Pradesh governor yesterday.

The Apex Court's order will ensure that Kundu remains the state police chief till the High Court decides his plea for recall of its direction.

A bench comprising Chief Justice D Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra also stayed the subsequent transfer order of the state government.

"Liberty is granted to the petitioner (Kundu) to move the high court when the proceedings are taken up tomorrow (Thursday) with an application for the recall of the order dated December 26, 2023," the bench ordered.

"We request the high court to dispose of the recall application within a period of two weeks," it said, making it clear that if the recall application is decided in favour of the IPS officer, then he will continue as the DGP.

The Apex Court also directed that pending disposal of the recall application of Kundu, no steps "shall be taken to enforce the order dated December 26" of the High Court.

Disposing of the plea, the CJI made it clear that all rights and contentions of the parties are kept open as the apex court has not made any observations of the merits of the case.

"The protection, which has been granted to the petitioner by this order, is passed on the ground that he was not heard by the high court," the CJI said.

Asking Kundu to approach the high court, the bench took note of the submissions of Senior Laywer Mukul Rohatgi, who represented Kundu, that he has no objection if the investigation in the case involving threat to the businessman is transferred to the CBI.

At the outset, Rohatgi said the high court passed the order without hearing the officer who has an "unblemished service" record. "The high court order causes serious prejudice to the petitioner who is on the verge of retirement," he added.

On the other hand, the Counsel for the businessman Rahul Sharma said it was a serious case of glaring procedural failure as the DGP was being probed by a Deputy Superintendent of Police. He said 15 calls were made to the businessman from the office of the DGP.

Rohatgi contended the 15 "missed calls" were made from the office landline number and not the DGP's mobile phone.

Yesterday, the Apex Court had agreed to hear a petition filed by Kundu challenging his removal as the Himachal Pradesh DGP following a high court order over allegations that he tried to pressure a businessman who alleged he received threat to his life from his partners.

The Himachal Pradesh High Court had on December 26 directed the state government to shift the state police chief and the Kangra superintendent of police so they don't influence a probe into the businessman's complaint about threat to his life.

In its order, the High Court also said it was intervening due to "exceptional circumstances, more particularly when the respondent Home Secretary had chosen to turn a blind eye" to material presented in the case.

In his complaint filed on October 28, Palampur-based businessman Nishant Sharma alleged threat to him, his family and property from his business partners. He had also questioned the conduct of Kundu, alleging that the officer made phone calls to him and asked him to come over to Shimla.

The HC had, on November 10, taken cognisance of another complaint by Sharma lodged with the Shimla superintendent of police, two days after the DGP filed a defamation case against the businessman.

The businessman alleged in the October 28 complaint that he was attacked by his business partners in Gurugram on August 25, and that two influential persons from Himachal Pradesh, including a former IPS officer, were also involved.

He claimed, after the attack, he came to Palampur in Kangra district, but the DGP called him up from his official phone number and "forced me to come to Shimla".

"On the same day two criminals stopped me at Mcleodganj in Dharamshala and threatened to harm my two-and-half-year old kid and wife," the businessman alleged.

"I drove to the house of the Superintendent of Police, Kangra (Shalini Agnihotri) at Dharamshala and narrated the plight to her and gave her my complaint but nothing has been done so far," he claimed in his complaint. He said he wanted an independent and unbiased investigation and FIR against everyone involved, including the DGP.

"This is the only way you would be able to apprehend this whole gang of extortionists," he said, marking the complaint to many people, including the chief justice of the high court.

The DGP filed a defamation case against the businessman on November 4, accusing him of harming his reputation and attempting to malign his image.

Cause Title: Sanjay Kundu v. Registrar General & Ors.

Click here to read/download Order

With PTI Inputs