Dismissed

Sunil Kumar v. State of Hp and Others

Himachal Pradesh HC9 Jul 2024CRWP/6/2024

Case brief

AI extract

What is this about?

The High Court dismissed a criminal writ petition filed as a pseudonymous letter alleging improprieties by a jail warden. The Court held that anonymous complaints without affidavits or verifiable details should not be entertained, especially against public servants, to prevent harassment and protect reputations. The petition was dismissed due to lack of merit.

What the court decided

AI extract

Sunil Kumar Vs State of Hp and… — Constitutional and Fundamental Rights | Himachal Pradesh HC (2024)

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( 2024:HHC:4997

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. WP No. 6 of 2024

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Date of Decision: 09.07.2024

Sunil Kumar

...petitioner.

Versus

State of H.P. & ors.

...Respondents

Coram

Hon’ble Mr Justice Tarlok Singh Chauhan, Judge. Hon’ble Mr Justice Sushil Kukreja , Judge. Whether approved for reporting?¹ No For the petitioner : None.

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Mr. Desh Raj Thakur, Advocate as Amicus Curiae.

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For the Respondents : Mr.Navlesh Verma and Ms. Sharmila Patial, Additional Advocates General for respondents No.1 to 5. Mr. B.R. Kashyap, Advocate, for respondent No.6.

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Tarlok Singh Chauhan, Judge (Oral)

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The instant petition has been registered on the

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basis of the letter received from one Sunil Kumar, District and Open Air Jail, Bilaspur, wherein it was averred that respondent No.6, Chief Warden of the Jail was supplying

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intoxicants like cannabis, opium, charas and chitta to the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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inmates of the jail for money, who accepts money partly in cash and partly through google pay and these transactions could be verified from his bank account.

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2 It was also stated that respondent No.6 was facilitating unauthorized phone calls through his mobile to many of the inmates and under trails and in return took liquor bottles and money and this fact could be duly verified from his mobile phone call records.

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3 It was then stated that respondent No.6 often deputes his favoured persons to work and few of them have been deputed constantly in the jail mess and takes half of their wages in cash. Apart from that, he deputes under trial prisoners instead of inmates.

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4 It was also stated that respondent No.6 was promoting his favorite under trial prisoners and inmates before the Superintendent of Jail and neglecting the eminent and honest officials.

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5 It was stated that some time back, an under trial prisoner had taken leave and had gone to his residence accompanied by the police personnel for some work but the said prisoner fled away from there and all this was pre-

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planned. This was facilitated through the mobile phone of respondent No.6 and later on, respondent No.6 had provided him with a phone worth Rs.40000/- inside the jail, which had yet not been launched in Himachal Pradesh and information regarding the same could be procured from respondent No.6. It was also averred that respondent No.6 was providing mobile phones inside the jail for money and later on, he himself had orchestrated searches and on the basis of which, these phones being recovered and produced before the Superintendent of Jail and this was done only to exalt his image in the eyes of his superiors. Some time back, a mobile phone worth Rs.40,000/- was recovered and the same had yet not even launched in Himachal Pradesh. The said phone was recovered from the under trial prisoner, who had absconded during his leave.

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6 Lastly, it was averred that all these things would be revealed in case the jail premises are ordered to be inspected.

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7 The petition came up for consideration before a co-ordinate Bench of this Court on 26.3.2024, when the following order was passed:-

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“After going through the contents of letter, which has been ordered by Hon’ble the Chief Justice to be treated as Cr. Writ Petition, we are of the view that Director General of Police and Superintendent of Police, Bilaspur, are also necessary party. Accordingly, they are ordered to be added as respondents and respondents are to be re-numbered as respondent No. (1) State of H.P., (2) Director General of Police, (3) Director General of Prisoner, H.P., (4) Superintendent of Police, Bilaspur, H.P. (5) Superintendent of Jail, Bilaspur, H.P. and (6) Paramdev Chief Warden, District and Open Air Jail Bilaspur, Distt. Bilaspur, H.P. Registry to take necessary steps for correction/place on record amended memo of parties.

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Mr.Desh Raj Thakur, Advocate, who is present in the Court, is appointed as Amicus Curiae in present case to assist the Court in the matter. Registry is directed to supply complete paper book to learned Amicus Curiae.

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Notice. Mr.Manoj Chauhan, Additional Advocate General waives service and accepts notice on behalf of respondents No. 1 to 5. Response/reply to the petition be filed within three weeks. Notice to respondent No. 6, returnable on next date be issued by the Registry.

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Superintendent of Police, Bilaspur is also directed to take immediate steps by deputing some senior officer to carry out inquiry and if necessary register FIR and carry out investigation and to submit separate status report on that count.

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Copy of petition be supplied to the Office of Advocate General for necessary action by them.

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Learned Additional Advocate General is directed to supply copy of petition alongwith copy of this order to the Superintendent of Police Bilaspur, through Electronic Mode, so as to enable him to take action on his part, without waiting for hard copy, in the matter.

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List on 23rd April, 2024.”

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8 In compliance of the aforesaid order, the

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respondents filed a status report, wherein it was stated that in compliance to the orders passed by this Court, a Special Investigation Team was constituted at District Bilaspur vide

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office order dated 27.03.2024 with the direction to enquire

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into the matter on all aspects and if necessary, to register an FIR and carry out the investigation.

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9 The Inquiry Officer carried out initial inquiry discreetly to collect relevant evidence to ascertain the veracity of the complaint. In the complaint, the complainant had disclosed his identity as Sunil Kumar without mentioning his parentage or address being temporary or permanent. In order to verify the credentials of the complainant, Interoperable Criminal Justice System (ICJS) portal was checked to verify the address of the complainant. It was found that there were two persons namely, Sunil Kumar and both are sons of Babu Ram, who remained in judicial custody in the District and Open Air Jail, Bilaspur and their details are as under:-

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Sr. No.	Name & Address accused	of	Case details	Whether remained under Judicial Custody	Period in District & Open Air Jail Bilaspur
1.	Sunil S/o Sh Ram Village Deoth Sadar, Bilarpur	Kumar . Babu R/o Boh PO Tehsil District , HP	73/19 dated 22/03/2019 u/s 147, 148, 149, 323, 451, 365, 506, 201 IPC, PS Sadar Bilaspur	Yes	27/03/2019 and bailed out on 28/03/2019
2.	Sunil s/o Sh	Kumar . Babu	78/23 dated	Yes	31/07/2023 and bailed out

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	Ram, R/o Village Nehar PO Harnota Tehsil Sadar, District Bilarpur-HP	28/07/2023 u/s 21,25,29 ND&PS Act, PS Swarghat Bilarpur		on 04/09/2023
3.	Suryakant s/o Sh. Shamsher Singh r/o VPO Barmana Tehsil Sadar District Bilaspur,HP	---do--- (Co- accused)	Yes	31/07/2023 to 26.08.2023

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10 The name of Suryakant has been mentioned at Sr.No.3, as he was the co-accused with Sunil Kumar figuring at Sr.No.2. All the aforesaid persons were associated in the inquiry and their specimen handwritings were also obtained and compared with the contents of the complaint but primafacie it was found to be different. Moreover, in the statements recorded during the inquiry, they clearly stated that they had never made any complaint nor asked any person to make such complaint.

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11 On 27.03.2024, three police personnel in civil uniform were deputed to keep sharp eye on the activities of respondent No. 6 as well as other suspects alleged to be involved in drug operations in the local area around the

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District and Open Air Jail, Bilaspur and to catch them red handed but no suspicious activities came to be noticed. On 28.03.2024 the call detail records of respondent No. 6 were secretly obtained along with the Customer Application Form (CAF). The Bank accounts of respondent No. 6 were also checked secretly, but no suspicious transaction came to be noticed.

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12 On 29.03.2024 the call detail records (CDR) of respondent No. 6 were analyzed/decoded carefully and thoroughly by the Cyber Cell Team of District Bilaspur. The CDR of mobile number of respondent No.6 was compared with the suspected cell numbers of drug peddlers operating in District Bilaspur as well as other suspects, but he had not been found in touch with anyone of them. The IMEI number of his cell phone had not been found changed and he was found using one cell phone since 14.10.2023 till date. During further inquiry, it had come on record that only Jail Superintendent and Medical Officer were authorized to carry their cell phones with them inside the jail premises up to their offices, whereas other staff, i.e. Chief Head Warden/Head Warden/Wardens and other staff members

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were not permitted to carry the cell phones inside the jail. They used to deposit the cell phones at the main gate with the Santry deputed on the gate and used to collect the same after completion of the duty hours.

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13 While procuring the records regarding the work assigned to the prisoners in jail mess, it was found that the duties were being assigned by the Jail Superintendent by preparing monthly lists and signed by the Jail Superintendent. Respondent No.6 had no role in deputing prisoners for mess work or other related work, therefore, the allegations leveled by the complainant remained unsubstantiated.

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14 On 29.3.2024, a search team consisting of two lady constables and one constable as was videographer constituted and briefed thoroughly about the action plan with the strict directions to maintain secrecy of the search operation. The search team reached the residential complex of the said jail and Up-Pradhan, Gram Panchayat Raghunathpura, Tehsil Sadar, District Bilaspur, H.P was associated as independent witness in connection with search operation. The Jail Superintendent was contacted

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telephonically and requested to direct respondent No.6 to remain present during the search operation and also to depute one jail official during the search operation:

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a. Thereafter, two jail Wardens, who resided in the same

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building and whose quarters were adjacent to the residential quarter of respondent No.6 came there and they were also associated as independent witnesses during the search operation. Respondent No.6 also joined the inquiry and he was thoroughly briefed about the complaint and the reasons of his house search.

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b. Thereafter, residential quarter of respondent No.6 was searched thoroughly in his presence and in the presence of independent witnesses. Videography of search operation was carried out. Inventory of the house searched was prepared carefully and thoroughly, but nothing suspicious was recovered from his possession.

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c. Thereafter, the inquiry team visited the jail to carry out further inquiry. Record pertaining to respondent No.6 was procured.

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d. Further, statement of Jail Warden was recorded. CCTV cameras installed for surveillance were checked

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thoroughly and it was found that presently 46 CCTV cameras had been installed inside the jail for surveillance and installation work of about 10 new CCTV cameras was underway. Almost every portion of jail was covered by the CCTV surveillance system, whereby the daily activities of staff and prisoners could be monitored on the screen inside the main gate of the jail and in the office of Superintendent of Jail.

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e. The matter was discussed with the Jail Superintendent to establish the veracity of the complaint but nothing incriminating came on record.

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f. Local inhabitants/shop-keepers/Dhaba owners were also interviewed secretly to ascertain the veracity of the complaint but nothing suspicious came on record.

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15 In order to ascertain the veracity of the allegations, letters were sent to the Branch Manager(s), SBI Bilaspur and PNB, Bilaspur to procure the statement of Bank accounts of respondent No. 6 w.e.f. 01.01.2023 till date. One salaried account with an amount of Rs. 18,032/- as on 29.03.2024 was found operational. Under his another bank account, which he had been operating, only a sum of Rs.

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11,64/as on 06.03.2024 was found. No suspicious transaction through google pay had been found in both these accounts. In addition, no suspicious transaction had been found to be made in both the bank account statements and history of google pay available on cell phone of respondent No. 6.

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16 It was further found that one prisoner Abhishek, who was arrested in FIR lodged under Sections 20, 29 of the NDPS Act, had been ordered to be enlarged on temporary bail by this Court vide order dated 02.06.2023 for a period starting from 03.06.2023 to 26.06.2023 on account of the death of his grandfather. The prisoner Abhishek was accordingly released on 03.06.2023 from the jail under the custody of two constables, as were directed by this Court, but the above prisoner jumped the temporary bail and succeeded to flee away from the custody of both the constables on 18.06.2023 and thereafter has not been traced. No conspiracy was found between the absconding prisoner Abhishek and respondent No. 6.

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As regards the phone possessed by respondent No.

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6, it was found that he had purchased the said phone from

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Sundarnagar, District Mandi and the same had been launched by the company in the month of February, 2022, whereas respondent No. 6 had purchased this phone much later on 14.10.2023 for a sum of Rs. 39,000/-, which corroborated the entries found in the debit card regarding the payment of this amount to the shopkeeper at Sundarnagar. Respondent No.6 was associated with the inquiry at the Conference Hall of SP Office. He was thoroughly briefed about the allegations leveled against him. Thereafter, his intensive interrogation was carried out. He was confronted with the CDRs and the statement of accounts of both banks. His statement was also recorded and the same was again cross checked with the CDRs and bank account statements as well as with the contents of the complaint, but nothing incriminating came on record. Thereafter, the cell phone of respondent No. 6 was analyzed carefully and thoroughly by the cyber team, but again nothing suspicious came on record.

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18 The Jail Superintendent/Warden was also associated in the inquiry process and even in his statement, nothing suspicious came on record.

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19 In order to ascertain the veracity of the complaint,

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the inquiry team conducted jail visit to interact with the life convicts as well as short convicts residing in the Open Air Jail. On the basis of random selection of prisoners for interview, seven persons were interviewed to ascertain the veracity of the complaint, but none supported the version of complaint as alleged by the unknown complainant. Some of them deposed that respondent No.6 did not like indiscipline and would reprimand the prisoners in case they were found to be violating or indulging in anything wrong. The bank accounts of the family members of respondent No.6 were also checked. A sum of Rs. 7,677/- were found in the account of his wife, while an amount of Rs. 3,463/-, Rs. 7,60/-, Rs. 91/- and Rs. 13/- were found in the account of the four sons of respondent No. 6 These bank statements were for the period w.e.f. 1.1.2023 uptil the date of receipt thereof.

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20 On 16.4.2024, the Inquiry Officer submitted his report to 4^th respondent with the following conclusion:-

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“Keeping in view the facts & circumstances narrated supra, it is submitted that all the aspects related to the complaint have been looked into thoroughly and enquired carefully & professionally to take it to its logical conclusion. The complainant by submitting anonymous complaint has concealed his identity thereby this act of the complainant strongly

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casts shadow that he/she has deliberately concealed his/her identity. Moreover, the allegations leveled by the anonymous complainant have not been substantiated and none of the allegations mentioned in the anonymous complaint is found to be correct.”

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21 We have gone through the reply and the

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documents accompanying the same and find that the instant case is a classical example where a disgruntled element of the society has grossly abused the process of this Court by levelling wanton, wild and unsubstantiated allegations against respondent No.6.

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22 No doubt, this Court entertained this petition on

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its face value but we are of the considered view that before entertaining this petition, the complainant ought to have been called upon to submit an affidavit in support of the complaint. Afterall, the complaint has eventually been proved to be a pseudonymous one and what is still worse is that the allegations levelled against respondent No.6 have been found to be totally unsubstantiated, which otherwise can conveniently be termed to be “false”, “fabricated” and “motivated” and above all defamatory.

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23 The normal rule ought to be that such kind of complaints, which appear to be pseudonymous, anonymous and innocous complaints, should not be entertained and only

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in exceptional cases, where verifiable details have been found, further action should be taken. One has to be particularly circumspect , when such complaints are received against a public servant.

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24 As observed above, the instant case is a clear example, where a disgruntled element has tried to blackmail an honest officer like respondent No.6. It is not difficult to understand and appreciate the hardship and the ordeal suffered by respondent No.6 in this entire episode. As already observed above, the Court ought not to have taken the complaint on its face value especially when it is bereft of any verifiable details.

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25 The embarrassment and harassment met out to respondent No.6 could have conveniently been avoided, given the fact that the contents of the letter (now petition) had a dangerous potential of tarnishing the image of respondent No.6 and has indeed tarnished his image. It cannot be gainsaid that reputation of a person is earned after years and the same cannot be tarnished by any individual or group of individuals in a casual and callous manner.

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26 To condemn respondent No.6 as dishonest, they

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had to be some material and it cannot be on the basis of hunch. A Government servant has to be honest, is to be seen as honest and he has to have it in him as a need and a requirement. Honesty is not a virtue for a Government Officer/servant. It is not a credited qualification that one can claim or flaunt as a Government officer, but is a need, necessity and requirement for him and the service.

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27 As observed above, the image of respondent No.6 has been sought to be tarnished and has been tarnished by the pseudonymous/anonymous complaint, which unfortunately was treated as a Criminal Writ Petition, by then, the matter cannot be left to rest here.

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28 The records of the case reveal that the letter, which was treated as a petition, was sent through registered post and bears the following address:-

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“Sunil Kumar, Village Banola, P.O Banola Tehsil Sadar, District Bilaspur, H.P. Pincode No.174001”

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29 Respondent No.4 is directed to carry out investigation regarding the authenticity of the address and also try to nab the complainant, so that to enable this Court to

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initiate appropriate action/proceeding against the complainant, that too on a false, fabricated and unsubstantiated allegations.

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30 We would also impress upon respondent No.4 to suitably reward respondent No.6 for the harassment and embarrassment that has been caused to him on account of fall out of the pseudonymous/anonymous complaint, so that he may gain his lost reputation amongst his family, relatives, colleagues, higher authorities and the society.

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31 In view of the aforesaid discussion, we find no merit in this petition. Accordingly, the same is dismissed.

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32 However, before parting, it needs to be observed that the instant case is a fit case where heavy costs ought to have been imposed upon the “petitioner”. Since the complaint is pseudonymous, therefore, even this Court is helpless in doing so. We hope and trust that this case would serve as an eye opener to the Institution as well as the authorities and discourage them from entertaining anonymous/pseudonymous complaints, unless these complaints are supported with an affidavit of the

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complainant or contains some verifiable details of the complainant.

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(Tarlok Singh Chauhan) Judge

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( Sushil Kukreja) Judge

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9^th July, 2024 (mamta)

Sunil Kumar v. State of Hp and Others

Case brief

What is this about?

What the court decided

Sunil Kumar v. State of Hp and Others

Case brief

What is this about?

What the court decided

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