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IN THE HIGH COURT OF HIMACHAL PRADESH

AT SHIMLA

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Cr.MP.Nos.79 and 84 of 2024

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IN
CR. WP no.14 OF 2023

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Reserved on:05.01.2024

Pronounced on: 09.01.2023

of
COURT ON ITS OWN MOTION.
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Versus
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1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY
( HOME-II) TO THE GOVT. OF HIMACHAL PRADESH

2. SUPERINTENDENT OF POLICE, KANGRA, DISTRICT

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KANGRA, HIMACHAL PRADESH

3. SUPERINTENDENT OF POLICE, SHIMLA, DISTRICT SHIMLA,

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HIMACHAL PRADESH

4. SHRI SANJAY KUNDU, IPS, S/O Dr. C.L.KUNDU, AGED

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59YEARS, R/O TYPE-VI, SET NO.6, BLOCK NO.6, JAKHU,

SHIMLA, HIMACHAL PRADESH- 171001
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5. MS.SHALINI AGNIHOTRI, D/o SHRI RAMESH KUMAR

AGNIHOTRI, VILLAGE AND POST OFFICE THATHAL, TEHSIL
AMB, DISTRICT UNA, HIMACHAL PRADESH.

…Respondents

_____________________________________________________________

Coram:

Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?

Amicus curiae : Mr. Neeraj Gupta, Sr. Advocate with

Mr.Vedhant Ranta, Advocate.

For the respondents : Mr. Anup Rattan, Advocate General with

Mr. Rakesh Dhaulta & Mr. Pranay Pratap
Singh, Additional Advocate Generals, and Mr.

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Sidharth Jalta & Mr. Arsh Rattan, Deputy

Advocate Generals, for respondent no.1 and 3.

Mr.Sanjay Jain, Senior Advocate through Video

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Conference with Mr.Arjun Lall, Mr.Aakash

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Thakur and Mr.Aakarsh Mishra, Advocates for
Mr.Sanjay Kundu ( respondent No.4)

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Mr.Shrawan Dogra, Sr. Advocate with
Mr.Tejasvi Dogra, Advocate for Ms.Shalini
Agnihotri ( respondent no.5)

of
M.S. Ramachandra Rao, Chief Justice.
The order dt.26.12.2023 in Cr.W.P.No.14 of 2023
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On 26.12.2023, an order had been passed by this Bench in
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Cr.W.P.No.14 of 2023 directing the State of Himachal Pradesh

represented by it’s Principal Secretary, Home –II ( respondent

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No.1) to take steps at the earliest to move Shri Sanjay Kundu, the
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then incumbent holding the post of Director General of Police,

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Himachal Pradesh (for short “DGP”) and Ms.Shalini Agnihotri,

the then incumbent holding the post of Superintendent of Police,

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Kangra at Dharamshala ( respondent No.2) to other posts where

they would not have any opportunity to influence the investigation

in (i) the FIR No.55/2023 registered by the Mcleodganj Police

Station, District Kangra at the instance of a businessman by name

Nishant Sharma against unknown persons under Sections

341,504,506,34 IPC on the basis of a email/complaint

dt.28.10.2023 made by Nishant Sharma and (ii) FIR No.98/2023

dt.4.11.2023 registered by Shri Sanjay Kundu in Police Station

East, Shimla, District Shimla. We had directed the listing of the

case again on 4.1.2024.

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To avoid repetition, the circumstances which led this Court

to pass the said order and the reasons therefor set out in the said

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order may be read as part and parcel of this order.

The order dt.3.1.2024 of the Supreme Court in SLP (Criminal) No.129 of

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2024
This order was challenged by Shri Sanjay Kundu before the

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Supreme Court of India in SLP (Criminal) No.129 of 2024 ( SLP

(Criminal) Diary No.54019/2023). He contended that he was not

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impleaded as a party in the Cr.WP.No.14/2023 and he was not
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heard by this Bench to rebut the allegations made against him in

the email dt.28.10.2023 of Nishant Sharma.

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The said SLP was disposed of on 3.1.2024 by the Supreme

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Court agreeing with his contention, and granting him liberty to

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move this Court when proceedings are taken up on 4.1.2024 with

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an application for recall of the order dt.26.12.2023.

The Supreme Court directed this Court to decide the recall

application within 2 weeks.

Till it was disposed off, the Supreme Court stayed the

direction for the transfer of Shri Sanjay Kundu of the post of DGP.

It also directed that no steps shall be taken to enforce the

consequential order issued on 2.1.2024 by the State Government

posting him as Principal Secretary (Ayush), Govt. of Himachal

Pradesh.

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Hearing on 4.1.2024

When the Cr.W.P.No.14 of 2023 was listed on 4.1.2024, it

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was informed that recall petition No. Cr.WP.No.79 of 2024 was

filed by Shri Sanjay Kundu.

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The Bench was also informed that Ms.Shalini Agnihotri,

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the Superintendent of Police, Kangra District at Dharamshala filed

(a) Cr.MP.No.74 of 2024 to implead her in her personal capacity

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and (b) Cr.MP.No.84/2024 to recall the order dt.26.12.2023
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passed in Cr.WP.No.14 of 2023 by this Bench to move her out of

the post of Superintendent of Police, Kangra District at

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Dharmshala.
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The State Government had not implemented the order

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dt.26.12.2023 qua Ms.Shalini Agnihotri as on date and did not

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move her out of the said position.

This Court directed these applications to be listed on

5.1.2024 for hearing having regard to the fact that this Court

would be having a winter vacation from 13.1.2024 till 25.2.2024

and there were only 5 working days for hearing the matter and for

pronouncing orders therein, and the Supreme Court had fixed two

weeks time for disposal of the recall petition of Shri Sanjay

Kundu.

A supplementary status report dt.4.1.2024 was filed by the

Superintendent of Police, Shimla through the Advocate General,

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State of Himachal Pradesh. Copy of the same was served on the

counsel on record for Shri Sanjay Kundu and Ms.Shalini Agarwal

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on 4.1.2024 itself on the direction of this Bench. This status report

has an important bearing on our decision in these applications.

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Hearing on 5.1.2024

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The Bench suo motu impleaded Shri Sanjay Kundu , IPS

in his personal capacity as respondent no.4. Cr.MP.No.74 of 2024

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filed by Ms.Shalini Agnihotri was also allowed and she was
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impleaded as respondent no.5 in this Cr.WP.

The recall applications Cr.MP.No.s 79 and 84 of 2024 filed

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by the said individuals were heard almost for the whole day by
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this Bench ( from 11 am to 4 pm) and orders were reserved.

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To avoid repetition, we shall discuss the submissions of the

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respective parties at the appropriate place while making

appropriate observations/findings necessary for the disposal of

these applications.

Consideration by the Court

At the outset Sanjay Jain, Sr.Counsel (for Shri Sanjay

Kundu) and Shri Shrawan Dogra, Sr.Counsel (for Ms.Shalini

Agnihotri) highlighted the brilliant academic achievements and

important milestones in the careers of their respective clients and

stated that their careers had been unblemished all through, but the

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order dt.26.12.2023 passed by us in Cr.WP.No.14 of 2023

damages their respective reputations and careers.

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Shri Sanjay Jain, Sr.Counsel stated that his client Shri

Sanjay Kundu is due to retire in 3 months time and he would want

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to leave service with a clean image.

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Shri Dogra stated that his client Ms.Shalini Agnihotri had

a long career ahead of her.

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Both therefore tried to impress this Court that as the order
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dt.26.12.2023 was passed behind the back of their respective
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clients, it ought to be recalled. They even offered to let the

investigation into the above FIRs to be done by an outside agency

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such as the Central Bureau of Investigation established under the

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Delhi Police Establishment Act,1946.

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RE: CR. MP.NO.79 OF 2024 FILED BY SHRI SANJAY KUNDU

Shri Sanjay Jain , Sr.counsel for Shri Sanjay Kundu stated

that his client had been contacted on 9.10.2023 by the practicing

Senior Advocate K.D.Shridhar (referred to as ‘Y’ in the previous

order dt.26.12.2023 passed by this bench) , an old acquaintance of

his, who had business dispute with Nishant Sharma, and told him

that business disputes between them had taken an ugly turn and

the latter had made certain scurrilous allegations against him

( K.D.Shridhar) in an email dt.9.10.2023 and implored on Shri

Sanjay Kundu to take action against Nishant Sharma. He

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contended that in good faith and motivated by principles of police

led mediation, Shri Sanjay Kundu, as DGP, undertook to look into

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the issue; and when he got time on 27.10.2023, he had asked his

private Secretary Rakesh Gupta to contact Nishant Sharma over

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the phone through the official land line, on the number given by

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the latter in his email dt.9.10.2023 sent to K.D.Shreedhar. He

admitted that despite many attempts he was informed by his

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Private Secretary that Nishant Sharma could not be reached. ( 15
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missed calls were admittedly made to the mobile of Nishant

Sharma from the land line of office of DGP on the morning of

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27.10.2023).

He stated that around afternoon on 27.10.2023, his office

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received a call from Nishant Sharma. He admitted that he

requested Nishant Sharma to come to Shimla, but he refused to

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come saying that he was going to Malaysia with his family.

Counsel stated that the conversation between Nishant Sharma and

Shri Sanjay Kundu was cordial, and that thereafter Shri Sanjay

Kundu neither had any meeting, nor even any telephonic contact

with Nishant Sharma.

This is strongly contested by the complainant Nishant

Sharma, who appeared in person. He stated that Shri

K.D.Shreedhar and his brother, by using their high connections,

were trying to intimidate him through the DGP and force him to

sell his and his father’s shares in the pvt.company by name M/s

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Shri Chamunda Laboratories and Projects Private Limited. He

contended that having failed in a takeover bid by process of

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Company Law, they have resorted to (a) intimidation by using

gangsters to attack him and his family and terrorize them so as to

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force a settlement and (b) also pressurize him to sell his family’s

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shares in the said Company by having him threatened through

influential people like Shri Sanjay Kundu. He alleged that during

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their phone conversation on 27.10.2023, Shri Sanjay Kundu spoke
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in a threatening tone and forcefully insisted that he should come to

Shimla and talk to him.

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It would be difficult for this Court to state which version is

correct, but we may point out the Courts in our Country have
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repeatedly laid down that the police officers cannot interfere in

civil disputes.
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A Division bench of the Andhra Pradesh High Court held in

the Government of Andhra Pradesh and Ors. vs. Palla Venkata

Ratnam and Ors1 as under:

“ 56. … The Supreme Court and this Court have repeatedly laid
down that the police officers cannot interfere in civil disputes. If
an allegation is made that an officer of the rank of SDPO is
involved in settling civil disputes and demanded illegal
gratification for the same, it is the primary duty of the immediate
controlling authorities as well as DGP as the head of the police
department to act promptly and take necessary action.”
(emphasis supplied)

1 Order dt. 09.07.2012 - APHC : MANU/AP/0715/2012 para 56

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In Sudershan vs. Director General of Police and Ors.2, the

Andhra Pradesh High Court held:

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“7. In view of the above contentions, the point that arises for
consideration is:

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"Whether the action of the second respondent in calling the
petitioner, who is a Medical Practitioner, to the office of the

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second respondent without registering any crime, and asking
him to produce the accounts relating to the nursing home in the
process of deciding an alleged dispute between the third
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respondent and the petitioner, is in violation of Articles 19(1)(g)
and 21 of the Constitution of India."
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……

28. It is also relevant to mention here that the police can only
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investigate into the crimes and call for any person, who can be a
witness in that case, and examine the person connected with the
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crime or the accused, to collect evidence in the case. At the same

time, the police have no power or jurisdiction to deal with civil
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disputes unconnected with criminal action.… … …

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30. In the present case, even if it is taken that the third

respondent is entitled to receive the amount, without prejudice to
the contention of the petitioner, the same is purely of civil nature
and the remedy of the third respondent is to file a suit for the
recovery of the amount. When the action to be taken by the third
respondent is purely of civil nature, the second respondent has
no jurisdiction to decide the claim of the third respondent as a
Police Officer. It is also apposite to notice that a Police Officer's
deciding a civil dispute amounts to exercising colourful
authority which is not vested in him under law.”

(emphasis supplied)

This was also reiterated in S. Ranjan Raju vs. State of Odisha 3.

The Orissa High Court observed:

2 Order dt. 07.10.1994 – AP HC : MANU/AP/0584/1994
3 Order dt.13.07.2020 – Orissa HC : MANU/OR/0156/2020.

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“6. …. This Court is regularly witnessing a worrisome trend of

increasing instances of abuse of the process of law by litigants
seeking to settle civil disputes, using the criminal law machinery.

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9. … … A general notion prevalent in the mind of an average
litigant is that if a person could somehow be involved in a

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criminal prosecution, there are high chances of imminent
settlement. Any effort to settle a civil dispute which does not
involves any criminal offence, by applying pressure though

of
criminal prosecution should be discouraged.”

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The Superintendent of Shimla in his status report

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dt.15.12.2023 stated at para 5F that “involvement of high profile

officers ( of the Police force) and criminal gangs to settle dispute

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between partners by forcing one partner for the purpose with

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means of extortion, criminal design as alleged by the

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complainant,… cannot be ruled out.”

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In para 4(a) of his recall application, Shri Sanjay Kundu

states:

“That the applicant has no prior relationship,

acquaintance or interaction … with Nishant Sharma..”

How a Senior Police Officer like Shri Sanjay Kundu, who

ought to be aware of the legal position that his interference in a

civil dispute between shareholders of a pvt.company is highly

improper, thought he should intervene and mediate between

K.D.Shreedhar and Nishant Sharma (with whom he had no prior

acquaintance) and settle their disputes, we are unable to

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comprehend. This conduct cannot be said to be within his line of

duty prima facie.

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Moreover, Shri K.D.Shreedhar is admittedly a Senior

Advocate practicing in this High Court of Himachal Pradesh with

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considerable knowledge and experience. He is not a poor man

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suffering any disadvantage and can certainly avail remedies

available to him at law to resolve his disputes with Nishant

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Sharma and his father and does not need Shri Sanjay Kundu’s
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intervention. At request of such a person, the attempt of Shri

Sanjay Kundu, IPS to attempt to settle the dispute seems to be a

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colourable exercise of his power and authority prima facie.

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In his status report dt.15.12.2023, the Superintendent of

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Police, Shimla had stated at para 7(o) that “ CDR analysis of Shri

K.D.Shreedhar’s mobile phone No.9816025857 reveals his

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contact with 9818153766 which is the mobile number of Shri

Sanjay Kundu, the DGP according to CAF details”. He stated at

para 8(b) that there were 9 such calls in September, October and

November,2023 and the longest conversation was on 25.10.2023

for 256 seconds. This was 2 days before the Mcleodganj incident

alleged by Nishant Sharma.

Thus the continued interaction between Shri Sanjay Kundu

and Shri K.D.Shreedhar for over 3 months suggests more than a

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mere acquaintance, and possibly a longer association/friendship

between them.

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The Superintendent of Police, Shimla also stated in his

status report dt.16.11.2023 that on 27.10.2023, the SHO,

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Palampur, Sandeep Sharma posted a Whatsapp message from his

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mobile number 82192-82766 to Nishant Sharma to call the DGP,

and that the said message reads:

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“ Nishant ji, Call on this land line 01772626222, DGP Sir,
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wants to talk to you”

The screen shot of this message is annexed as Annexure R/3-6 to

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his status report.

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There is no reference to this Whatsapp message in the

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recall petition filed by Shri Sanjay Kundu.

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In para 6 of his recall application, Shri Sanjay Kundu even

admitted to have placed the Hotel Sai Gardens run by Nishant

Sharma in September, 2023 under surveillance for alleged drug

running activities.

None of these circumstances is disputed by Shri Sanjay Jain,

counsel for Shri Sanjay Kundu.

He also admitted that Shri Sanjay Kundu, DGP had filed FIR

No.98/2023 dt.4.11.20223 at Shimla East Police station against

Nishant Sharma alleging defamation by the latter.

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We had relied on all these circumstances i.e (a) that there

were contacts between Shri Sanjay Kundu and Shri

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K.D.Shreedhar, (b) that Shri Sanjay Kundu had persistently

attempted to call Shri Nishant Sharma, (c) that Shri Sanjay Kundu

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had placed the Hotel run by Nishant Sharma under surveillance

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and (d) Shri Sanjay Kundu had filed FIR No.98/2023 at Shimla

East Police station against Nishant Sharma, as circumstances

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warranting the passing of the order dt.26.12.2023 directing the
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State of Himachal Pradesh to move him out of the DGP position

he was holding.
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In view of the above undisputed facts, this Court had no

choice but to pass the order dt.26.12.2023 since the State

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Government did nothing in the matter.

The status report dt.4.1.2024 of the Superintendent of Police, Shimla

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On 4.1.2024, a status report with annexures had been filed

by the Superintendent of Police, Shimla contents of which are

worthy to note:

“1. .. during the course of investigation of the case FIR

No.98/2023 dt.4.11.2023 under Sections 211,469,499,500 and
505 IPC registered in Police station east, District Shimla, H.P,
the Investigating Officer, Amit Thakur, Deputy Superintendent
of Police(LR), Shimla has visited the office of the DGP, HP.
During the course of investigation, in the office of the DGP, HP,
the tone and manner of the DGP was not only intimidating but
also impeding in the investigation. The DGP, Sanjay Kundu, in

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a forceful manner stated that whatever you (investigating

officer) have done & doing will have consequences.

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2.It is pertinent to submit that the matter qua above, the report

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of the Investigation Officer was also brought in the knowledge
of the Principal Secretary (Home) to the Government of H.P.

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vide letter No.115811 dt.28.12.2023.

3…

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4. That it is most humbly submitted that the investigation done
till date, on the basis of material evidences collected, in terms
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of real, physical and electronic, are sufficiently corroborating
as well as point needle of suspicion strongly towards the role
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playing of DGP, Sanjay Kundu, DGP,HP, in the commission of
the crime alleged by the complainant in the Daily dairy No.78
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dt.4.12.2023 of Police Station East, Shimla, District Shimla,

HP and imputations leveled in FIR No.98/2023
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dt.4.11.2023….”
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Ex.R1 to this status report is the detailed complaint made

by the Dy.Superintendent of Police, Shimla to the

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Superintendent of Police, Shimla mentioning the intimidating

behavior of the DGP on 14.12.2023 when he went to question

him as part of his investigation in the complaint filed by the DGP

against Nishant Sharma.

Ex.R2 dt.28.12.2023 to this report is the letter written by

the Superintendent of Police, Shimla to the Principal Secretary,

Home, HP enclosing the copy of the above complaint of the

Dy.Superintendent of Police. The Superintendent of Police,

Shimla in this letter stated that the investigation officer needs to

be insulated from the authority and undue influence of the DGP;

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that there is every apprehension that the DGP , being in the

central of the command in the Police Department, may implicate

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or cause harm in any manner to the officers in the chain of

investigation. Therefore there is need to take serious note of the

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matter against the erring officer mentioned above under the All

of
India Services ( Discipline and Appeal) Rules, 1969. He stated

that otherwise the investigation process will not be able to

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reach/trace the truth.
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It is probably this material, along with the order

dt.26.12.2023 passed by us, which prompted the State

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Government to shift Shri Sanjay Kundu out of the post of DGP,

HP and post him as Principal Secretary (Ayush), Govt. of

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Himachal Pradesh on 2.1.2024.

When we passed the previous order dt.26.12.2023, we

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were only concerned whether there is a real likelihood of bias, but

when such specific instance of intimidating the Investigating

Officer comes to light, indicating actual interference with the

process of investigation, would it be safe to let Shri Sanjay Kundu

continue to be the DGP, HP?

Should this Court, under the pretext of protecting the

reputation of the officers concerned, forget it’s constitutional

responsibility of ensuring fair investigation in the matter?

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We think not. There cannot be a fair trial without fair

investigation.

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In Dharam Pal v. State of Haryana4, the Supreme Court

has underscored the imperativeness of ensuring a fair and

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impartial investigation against any person accused of commission

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of cognizable offence as the primary emphasis is on instilling faith

in the public at large and the investigating agency.

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When the Court asked Sr. Counsel Sanjay Jain representing
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Shri Sanjay Kundu for his response to the material contained in

the status report dt.4.1.2024 filed by the Superintendent of Police,

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Shimla, , he contended that the said official had malafide intention

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on account of certain infractions committed by the said official in

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the past year, and the DGP had written to the State Government

seeking action against the said official. Some of the allegations

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are set out in para 7 of his recall petition. He alleged that so

Superintendent of Police, Shimla twisted facts and misrepresented

them to show the DGP in poor light in his status reports.

The Advocate General took strong objection to these

allegations leveled against the Superintendent of Police, Shimla

and pointed out that in the investigation of FIR No.98/2023 at

Shimla (East) Police Station lodged by the Shri Sanjay Kundu

against Nishant Sharma, the Superintendent of Police, Shimla is

not the Investigating Officer. The Deputy Superintendent of

4 (2016) 4 SCC 160

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Police(LR), Shimla, Shri Amit Thakur, is the Investigating officer;

and that the Superintendent of Police, Shimla was merely filing

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status reports in the matter on the instructions issued by the Shri

Amit Thakur. We find force in this contention.

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The Advocate General appearing for the State of HP

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strenuously opposed the plea of Shri Sanjay Kundu to recall the

order dt.26.12.2023 passed by this Court and stated that the

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allegations leveled by Shri Sanjay Kundu against the
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Superintendent of Police , Shimla ought not to have been made

and there is no merit in his recall application.

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The scope of this Writ Petition is to ensure fairness of

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investigation in the FIRs, and not to probe conduct of officials

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unrelated to the incidents/events alleged in the FIRs.

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The material collected by the Investigating Officer cannot

be scrutinized in these proceedings and opinion on the veracity

thereof cannot be expressed by us.

If after conclusion of the investigation, a charge sheet is

filed in a criminal court against certain accused persons

(whosoever they may be–on which aspect, we refrain from

speculating at this time), during trial only the said Court can go

into the said material, and draw any conclusion as per law. Such

accused will get full opportunity at the trial to rebut/question the

validity and authenticity of the prosecution case. If we were to

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express any opinion on the said material it would amount to

giving an advance ruling on it, and might cause irreparable

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injustice.

Therefore in our opinion, no case has been made by Shri

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Sanjay Kundu for recall of the order dt.26.122.2023 passed by this

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Court.

RE: Cr.MP.No.84 of 2024 of Ms.Shalini Agnihotri

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Now we shall deal with the pleas raised by Shri Shrawan
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Dogra appearing for Ms.Shalini Agnihotri, Superintendent of

Police, Kangra (in her individual capacity). She had been

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impleaded as respondent no.2 in the Cr.WP in her official capacity

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and as respondent no.5 in her personal capacity.

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In the order dt.26.12.2023, qua the said officer, we had

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noticed the following:

“The failure of respondent no.2 to act on the complaint

made on 28.10.2023 immediately, register an FIR and
investigate the same is not explained by respondent no.2.
The FIR came to be registered belatedly on 16.11.2023 after
this Court entertained the CRWP.

There is no explanation offered by respondent no.2 as

to why the material mentioned in the status reports of the
respondent no.3 is not being utilised to probe deeper into the
issues/matter as seems to be warranted.”

Shri Shrawan Dogra , Sr.Counsel appearing for the said

officer submitted that she is not directly the investigating

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officer in the case relating to the FIR No.55/2023 at Police

Station Mcleodganj, Kangra District.

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According to him, she did not know the Nishant Sharma

or the parties against whom he had filed the complaint and that

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to the best of her ability, she had taken her independent

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decision in the matter without any influence or interference

from her superior officers in hierarchy. He placed reliance on a

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list of dates and events supplied by him (which were not
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furnished to any of the other parties).

We shall scrutinize her course of conduct between

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28.10.2023 till 16.11.2023 to see what she did qua the

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complaint dt.28.10.2023 of Nishant Sharma (which she

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admittedly received through her email on that very day), and

how she did the said actions.

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(a) In the first status report dt.16.11.2023 filed by

Ms.Shalini Agnihotri, as the Superintendent of Police,

Kangra, she stated that on receipt of the email dt.28.10.23

from Nishant Sharma about the incident which occurred on

27.10.2023 at Mcleodganj, considering it’s seriousness, she

issued directions to the Incharge Security Branch for discreet

verification of the facts and ascertaining the truth of the

contents of the email.

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Ex. R-2 dt.29.10.2023 is the said letter addressed by

her to the said official.

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The letter reveals that she had asked him to put up a

brief report within a week to her.

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Considering the plea of threat to life made by Nishant

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Sharma and her claim that she treated it as a serious one, why

she had granted a week instead of a shorter time is not

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explained by her.
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(b) She also enclosed Ex.R-4 to the said report which
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is a letter dt.31.10.2023 addressed by her to Nishant Sharma

mentioning that his complaint was dt.30.10.2023 (This date

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given by her is wrong. He had sent it to her through an email

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dt.28.10.2023), that he had apprehension of threat to life and

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property from someone, that he had tried to meet her, but

could not do so ( Nishant Sharma stated that he went to the

residence of SP, Kangra on 28.10.2023, but she was not

available and having waited for a long time to meet her, he

had returned back to his house at Palampur), and he should

meet her in her office on 1.11.2023.

This letter was written by her on the third day after she

received the complaint on 28.10.2023.

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She could have asked him to meet her earlier by

responding to his email dt.28.10.2023, if not on that day,

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atleast on the following day.

(c) She filed Ex.R-6 dt.6.11.2023 addressed by her to

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Station House Officer, Police station, Mcleodganj asking him

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to check all CCTV cameras in the location of the incident at

that place alleged by Nishant Sharma or in the vicinity

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discreetly, ascertain additional information in the matter and
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submit brief report to her within a week to her.

So she had thus given him time till 13.11.2023 for

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collection of this data i.e 15 days after the date of incident on

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27.10.2023. She could have asked him to collect them and

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send it to her sooner.

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This letter dt.7.11.2023 was also issued by her almost 9

days after she received the complaint dt.28.10.2023 from

Nishant Sharma and 10 days after the incident on 27.10.2023.

This action should have been taken sooner since there

was a risk that CCTV footage would automatically get erased

after a brief period of time of about 7-14 days.

(d) She also filed Ex.R-7 letter dt.7.11.2023 addressed

by her to Sub-Divisional Police Officer, Palampur stating that

since Nishant Sharma hails from Palampur, he should ensure

safety and security, that he should act promptly in response to

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any inputs regarding threat to him, and also keep a sharp vigil

and surveillance at his Hotel Sai Gardens.

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It was thereafter that a GD entry came to be made on

8.11.2023 at Police Station Palampur, but not even such entry

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was made at Police station, Mcleodganj within whose

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jurisdiction the alleged incident occurred.

Why she had not instructed the SHO, Mcleodganj to

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register the FIR and start investigation even then, is
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inexplicable.
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Thus, having acknowledged the seriousness of threat to

life faced by Nishant Sharma and his family from unknown

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persons, we find it strange that she showed no urgency in the

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matter and treated it in a casual manner.

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Nishant Sharma, party-in-person, contended as under:

(i) inspite of his email dt.28.10.2023 to Ms.Shalini

Agnihotri, the Superintendent of Kangra, he received no

phone call from the Police Station at Mcleodganj under her

jurisdiction for next 2 weeks and his family was petrified.

This assertion is not denied by counsel for Ms.Shalini

Agnihotri.

(ii) when he met her on 1.11.2023 as per her instructions, and

briefed her about the details of the occurrence on 27.10.2023,

Ms.Shalini Agnihotri, the Superintendent of Kangra said

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“Now what should we do?”. He contended that this tepid

reaction from her, demoralized him since she appeared to be

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not knowing how she should proceed even after being told

the details. He denied the statement in her status report

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dt.16.11.2023 that he did not give such details to her.

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(iii) she was mostly inaccessible inspite of several attempts

made by him to contact her even through email and she had
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called him on phone only once on 7.11.2023.
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(iv) CCTV footage of the attack made at Gurugram on

25.8.2023 were sent by him to Superintendent of Police,

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Kangra, the Superintendent of Police, Shimla and other high

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officials ( referred to as para 2 ( Ex.R-3/1 ) to his status report

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dt.16.11.2023 of Superintendent of Police, Shimla). But in

her status report filed on same day, the Superintendent of

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Police, Kangra stated wrongly that CCTV footage did not

indicate any attack on him at Gurugram, which is false. He

stated that a misleading attempt has been made by her to

show that he was making up a story, but the Judicial

Magistrate First Class, Gurugram had made the Police there

to register an FIR acting on his application under Section

156(3) Cr.P.C, being FIR No.350/2023 dt.27.11.2023 under

sections 323,506, 34 IPC at Police Station Sector 9-A,

Gurugram.

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(v) that the Ram Prashad Jaswal, who is Dy. Superintendent

of Police (LR) , Kangra and was the Investigation officer at

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Kangra summoned wife of Nishant Sharma to make

statement, but there was no woman constable in the room and

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only 4 male constables were present when her statement was

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recorded.

(vi) copy of the FIR 55/2023 which was filed on 16.11.2023

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was not given to him by the SHO, Police Station, Mcleodganj
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immediately though Section 154 (2) Cr.P.C and after he

waited for 3 hours in the said Police Station on 17.10.2023,

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copy of the FIR was given to him.

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(vii) when statements of Shri K.D.Shreedhar and others were

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being taken in the office of the Superintendent of Police,

Kangra it was their lawyer who was answering the questions

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put to them and these were taken down by the police as if

Shri K.D.Shreedhar or his associates were making them.

(viii) sketches of the persons who had accosted him on

27.10.2023 at Mcleodganj were asked by the Investigation

officer at Kangra to be submitted by him by placing a lap top

before him and asking him to draw their faces. No artist was

provided by the Police to help prepare the sketch of such

persons and the software in the lap top was not such that he

could prepare it as it had very limited features.

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(ix) Two days before every hearing which was to take place

in this Court, he alleged that would be called by the

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Investigation Officer at Kangra, and something vague would

be discussed with him to make it appear that there was an

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investigation being done, but everything was only on paper

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and there was no seriousness in approach.

(x) ineffective security was provided to him inspite of the

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Court orders;, that when he had to go to Gurugram to make
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his statement to the Police there, no security was provided to

reach Gaggal Airport in Dharamshala to him to take the flight

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to Delhi; that he had to contact the Superintendent of Police,

Shimla after reaching Delhi for such security, and then he

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promptly arranged it at Delhi after talking to his counterpart

in Gurugram. He stated that initially only one PSO was

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provided for his security by the Superintendent of Police,

Kangra, that the said PSO would sleep at Nishant Sharma’s

house till 8 am in the morning, have breakfast in his house,

and treat it as a holiday. Later, on his complaint, 4 PSOs per

day each having duty time of 4 hours only, have been

provided. He stated that he and his family feel highly unsafe

and are frightened.

The Superintendent of Police, Kangra stated in her status

report filed after 5.12.2023 ( which was taken on record by

this Court on 14.12.2023) at para 5 that CCTV footages of 5

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cameras in the vicinity were analysed but they did not show

the assailants on the motorcycle in question. It is possible that

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the delay in collection of the CCTV footage by the

Investigating Officer at Kangra caused it to get erased.

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In contrast, the Investigation Officer i.e Shri Amit

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Thakur, the Dy.Superintendent of Police, Shimla stated in his

report dt.5.11.2023 stated that a team had been sent to

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Dharamshala to collect CCTV footage at Mcleodganj (Ex.R-
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1 to the status report dt.15.12.2023 of Superintendent of

Police, Shimla).
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When the CCTV footage as well as call data analysis of

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the mobile phones of the DGP, K.D.Shreedhar and the

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complainant were available with the Investigation officer at

Shimla, why the then Investigation Officer at Kangra

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investigating FIR No.55/2023 dt.16.11.2023, was not using

the material for purpose of his investigation, is baffling.

Ms.Shalini Agnihotri, the Superintendent of Police,

Kangra was aware that this Court was monitoring the

investigation periodically and seeking status reports. She is

expected to show some diligence and sensitivity to the

concern of the court and ensure, as a supervising authority,

proper investigation by her subordinates.

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Shri Shrawan Dogra, Sr.Counsel for Ms. Agnihotri

emphasized that after 28.10.2023, there were important

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festivals like Karwa Chauth on 1.11.2023 and Diwali on

12.11.2023 and his client was busy celebrating them !!

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How a responsible police officer can take such a plea

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when there is serious threat to life of a citizen, we are unable

to understand.
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The FIR No.55/2023 was admittedly registered by the
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Police Station, Mcleodganj only on 16.11.2023 after this

Court had entertained the Cr.WP on 9.11.2023 and it’s listing

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on 10.11.2023, and after the Advocate General assured this

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Bench on 16.11.2023 that an FIR would be registered as

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regards the alleged incident which happened at Mcleodganj

on 27.10.2023.
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According to Shri Shrawan Dogra, Sr.Counsel, his client

was getting done a preliminary enquiry into the allegations

leveled by Nishant Sharma against KD Shreedhar and his

brother Sachin Shreedhar , a former IPS officer ( referred to

X in our previous order dt.26.12.2023).

We may point out that the said FIR No.55/2023

dt.16.11.2023 mentions offence under Section 341 IPC apart

from offences under Sections 504,506 and 34 IPC.

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Section 341 IPC deals with offence of wrongfully

restraining a person, which is a cognizable offence.

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The Supreme Court in it’s Constitution Bench decision

in Lalita Kumari v. Govt. of U.P.5 held that if a complaint

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discloses the commission of a cognizable offence, the police

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have no discretion or option but to forthwith register an FIR,

send a report to the Magistrate under Section 157(1) Cr.P.C

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and commence investigation. It declared :
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“49. Consequently, the condition that is sine qua non for
recording an FIR under Section 154 of the Code is that there must
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be information and that information must disclose a cognizable

offence. If any information disclosing a cognizable offence is led
before an officer in charge of the police station satisfying the
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requirement of Section 154(1), the said police officer has no other

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option except to enter the substance thereof in the prescribed

form, that is to say, to register a case on the basis of such
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information. The provision of Section 154 of the Code is

mandatory and the officer concerned is duty-bound to register the
case on the basis of information disclosing a cognizable offence.
Thus, the plain words of Section 154(1) of the Code have to be
given their literal meaning.
………
53. Investigation of offences and prosecution of offenders are the
duties of the State. For “cognizable offences”, a duty has been
cast upon the police to register FIR and to conduct investigation
except as otherwise permitted specifically under Section 157 of
the Code. If a discretion, option or latitude is allowed to the
police in the matter of registration of FIRs, it can have serious
consequences on the public order situation and can also
adversely affect the rights of the victims including violating their
fundamental right to equality.

5 (2014) 2 SCC 1

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54. … The provisions of Section 154(1) of the Code, read in the

light of the statutory scheme, do not admit of conferring any

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discretion on the officer in charge of the police station for
embarking upon a preliminary inquiry prior to the registration of
an FIR. …. ….

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55. In view of the above, the use of the word “shall” coupled with

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the scheme of the Act lead to the conclusion that the legislators
intended that if an information relating to commission of a
cognizable offence is given, then it would mandatorily be
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registered by the officer in charge of the police station. … ”
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“96. The underpinnings of compulsory registration of FIR is not
only to ensure transparency in the criminal justice-delivery
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system but also to ensure “judicial oversight”. Section 157(1)

deploys the word “forthwith”. Thus, any information received
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under Section 154(1) or otherwise has to be duly informed in the

form of a report to the Magistrate. Thus, the commission of a
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cognizable offence is not only brought to the knowledge of the

investigating agency but also to the subordinate
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judiciary.”(emphasis supplied)

Surely, an IPS officer having more than 10 years of service

knows this legal position.

If the email dt.28.10.2023 disclosed the commission of the

cognizable 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. Under sub-section (3) of

Section 154 Cr.P.C she has to either investigate the case herself

or direct an investigation to be made by any police officer

subordinate to her. Strangely she chose not to have an FIR

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registered under sub-section(1) of Section 154, and proceeded to

allegedly carry out a preliminary enquiry.

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There is thus prima facie a dereliction of duty on her part

in this regard. She had no authority in law to have a preliminary

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enquiry done in respect of information about commission of a

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cognizable offence contained in the complaint dt.28.10.2023

made by Nishant Sharma to her.

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The above conduct of Ms.Shalini Agnihotri cannot be
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viewed with lenience in the facts and circumstances of the case

as she has not shown the needed sensitivity, urgency and prompt
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action through out.

Therefore we see no reason to recall our order

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dt.26.12.2023 qua Ms. Ms.Shalini Agnihotri either.

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Whether a CBI enquiry can be ordered

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We shall now consider whether the pleas of Shri Sanjay

Kundu or Ms. Shalini Agarwal to keep them in their respective

jobs as DGP, HP and Superintendent of Police, Kangra

respectively and get the FIRs investigated through the Central

Bureau of Investigation, has any merit.

The Advocate General for the State of HP vehemently

opposed this plea and stated that the State of HP does not agree

to this course of action. He also stated that only in exceptional

cases this court may direct investigation by the said agency

when the State opposes it, and the instant case is not falling in

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the said category. He stated that such act cannot be directed to

be done to just enable the DGP to stay in power and satisfy his

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ego.

The Amicus Curiae also supported this view and

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contended that (i) failure to register an FIR with speed, (ii)

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provide police protection to Nishant Sharma effectively, (iii)

lethargic conduct of investigation of the crime alleged in FIR

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No.55/2023 registered on 16.11.2023 at Police station,
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Mcleodganj and (iv) the offences referred to therein, by

themselves may not warrant getting the investigation done by

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the Central Bureau of Investigation merely because the DGP of

the State appears to be involved with Shri K.D.Shreedhar, the

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business rival of Nishant Sharma.

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In Sakiri Vasu v. State of U.P.6, CBI v. State of

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Rajasthan7, Himanshu Kumar and others v State of

Chattisgarh and others8 , Anant Thanur Karmuse v. State of

Maharashtra9 and Vishal Tiwari v.Union of India and others10,

the Supreme court had emphasized that the power conferred on

the High Court to transfer investigation to an outside agency like

the Central Bureau of Investigation has to be exercised

sparingly. In Mithilesh Kumar Singh V. State of Rajasthan 11,

the Supreme Court held that investigation cannot be transferred

6 (2008) 2 SCC 409
7 (1996) 11 SCC 253
8 (2022) SCC Online SC 884
9 Crl.Appeal No.13.of 2023 dt.24.2.2023 (SC)
10 Writ Petition (c)No.162 of 2023 and others dt.3.1.2024 (SC)
11 (2015) 9 SCC 795

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just for the asking nor can it be done to satisfy the ego or

vindicate the prestige of a party interested in such investigation.

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We agree with the contentions of the Advocate General

and the learned Amicus Curiae that the instant case does not fall

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in the category of cases which would require investigation by the

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Central Bureau of investigation.

For all the aforesaid reasons, we reject the plea of Shri

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Sanjay Kundu and Ms.Shalini Agnihotri to recall our order
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dt.26.12.2023 or to transfer the investigation to the CBI.

Consequently, Crl.MP.NO.79 and Crl.MP.NO. 84 of 2024

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are dismissed.

We once again reiterate that we are not expressing any

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opinion on the merits of the claims of the parties since the

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investigation is still not complete.

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The Principal Secretary (Home), State of HP and the

respondent No.2 in the said Cr.WP shall ensure effective

protection to Shri Nishant Sharma and family until further

orders.

The State Government shall consider within one week

forming of a Special Investigation Team consisting of IG level

officers to coordinate the investigation in all the FIRs mentioned

here and also to advise on providing adequate and effective

security to Nishant Sharma and family.

List Cr.WP. on 28.2.2024.

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Fresh status reports be filed on the said date by the

respondent No.s 1 to 3.

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M.S.RAMACHANDRA RAO
CHIEF JUSTICE

H
JYOTSNA REWAL DUA
09.01.2024 JUDGE

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