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HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case:- WP(C) No. 290/2022

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WP(C) No. 293/2022

Dheeraj Pargal

…..Petitioner

Through: Mr. P.N. Raina, Sr. Advocate with

Mr. J.A. Hamal, Advocate

Vs

UT of J&K and another

.…. Respondents

Through: Mrs. Monika Kohli, Sr. AAG with

Ms. Nazia Fazal, Assisting Counsel.

Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGMENT

(21.07.2026)

01. The adjudication of two cases i.e. WP(C) No.

290/2022 and WP(C) No. 293/2022 , both instituted on

15/02/2022 bearing an interrelation and interlocking, both

factual as well as legal, is being accorded vide this common

judgment meant to serve both.

02. This Court is first coming to deal with the factual

conspectus of WP(C) No. 290/2022.

03. This writ petition came to be filed on 15.02.2022 by

the petitioner-Dheeraj Pargal whose father – Rakesh Kumar

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Pargal was a government servant serving as Junior Assistant

in Food, Civil Supplies & Consumer Affairs Department

(FCS&CAD), Udhampur.

04. The petitioner’s father – Rakesh Kumar Pargal was

brought under scanner for alleged acts of omission and

commission as a public servant on the purported information

that he had amassed disproportionate assets by misuse and,

abuse of his official position as a public servant and

consequently, a Preliminary Enquiry (in short “PE”) came to

be set up and initiated in the year 2015 by the Anti Corruption

Bureau (“ACB” in short), Police Station Udhampur.

05. The purported purpose of said PE was obviously to

confirm at prima facie level that the allegation of said Rakesh

Kumar Pargal having accumulated and amassed huge assets

worth crores of rupees, both in the form of moveable and

immoveable properties in his name as well as in the name of

his family members beyond his known source of income was

worth some substance so as to take a call whether to book him

formally for investigation by registration of an FIR or not.

06. The petitioner’s father- Rakesh Kumar Pargal, feeling

exasperated that said PE against him by the ACB, Udhampur

has stretched for the last more than five years amounting to

witch hunting, filed a writ petition WP(C) No. 1147/2020

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before this Court thereby challenging the very legitimacy of said

long stretched PE.

07. This writ petition WP(C) No. 1147/2020 was filed in

June, 2020 in which, in terms of an order dated 10.07.2020,

this Court came to call for a status report of PE No. 03 of 2015

from the ACB, Udhampur.

08. It seems that in order to avoid an explanation for

and to cover up prolonged delay in taking said PE No. 03 of

2015 to its logical end, the ACB, Udhampur rushed to register

an FIR No. 01/2020 dated 04.08.2020 so as to be able to

show before this Court in response to said writ petition WP(C)

No. 1147/2020 in the context of status report solicited about

action taken.

09. Registration of FIR No. 01/2020 came to bear an

opening line that a PE conducted to look into allegations

against Rakesh Kumar Pargal has been found to constitute

offences punishable under section 5(1)(e) read with section 5(2)

of the Jammu & Kashmir Prevention of Corruption Act,

Svt., 2006 (in short “PC Act, Svt., 2006”).

10. In said FIR No. 01/2020, it came to be mentioned

that it came to surface during PE that said Rakesh Kumar

Pargal has amassed huge assets worth crores of rupees in the

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form of moveable/immoveable properties, in his own name and

in the name of his family members, which are:-

a) 6 shops;

b) a House;

c) a Showroom;

d) a Plot measuring approximately 19 marlas;

e) a Plot measuring 1 kanal 17 marlas at village

Battal Ballian, Udhampur;

f) Innova car;

g) Royal Enfield motorcycle;

h) Tata Ace Zip;

i) Vespa Scooty; &

j) Jewellery etc.

11. In addition, FIR also came to bear a mention that

said Rakesh Kumar Pargal has also constructed a palatial

house at Badali, Udhampur and is in possession of insurance

policies, bank deposits in his own name and in the name of his

family members besides having substantial shares in M/s

Kamdhenu Apartments. It also came to be mentioned in the

FIR that said Rakesh Kumar Pargal had channelized ill-gotten

money to the tune of about Rs. 80 lacs through business

concerns of his sons.

12. The investigation of said FIR was shown entrusted to

Dy. SP, ACB, Udhampur/Reasi (UR) Range .

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13. By reference to investigation of said FIR, the ACB,

Udhampur had come to conduct search of two residential

houses viz. H. No. 170, Ward No. 13, Hospital Road

Udhampur and house situated at Devika Vihar Colony,

Rakh Badali, Near SKPA, Udhampur and also conducted

search of commercial buildings, namely, Dogri Haveli/Feeling

Banquet Hall situated at Battal Ballian, Udhampur on the

basis of search warrant from the competent criminal court of

law and in the process allegedly seizing incriminating

documents.

14. Investigating Officer reported that Rakesh Kumar

Pargal is in possession of the following properties:-

a) Six shops and a showroom in Udhampur.

b) A residential house at Hospital Road, Udhampur.

c) A plot of land measuring 07 Kanal 05 Marlas

under Khasra Nos. 715, 716, 719, 732, situated

at Village Ballian, Udhampur, together with a

building, namely Feeling Farms (Banquet Hall),

constructed upon the said land.

d) Land measuring 02 Kanal 12 Marlas (approx.),

bearing Plot Nos. 7, 8, 15 & 16 of J&K

Cooperative Housing Corporation , situated at

Rakh Badali, Devika Vihar Colony, Udhampur ,

together with a residential house constructed

thereupon on the said land.

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e) Various vehicles, jewellery, insurance policies, and

bank deposits.

15. Entertaining an apprehension that said Rakesh

Kumar Pargal may alienate the properties so identified or

otherwise deal with them to defeat the purpose of investigation

and prosecution of the case, the Investigating Officer, ACB

came to invoke provisions of section 8-B of PC Act, Svt., 2006

and carried out attachment and seizure of the properties,

which are:-

I. A plot of land measuring 7 kanal 5 marlas under

khasra Nos. 715, 716, 719 & 732 situated at village

Ballian, Udhampur together with building namely

Feeling Farms (Banquet Hall) constructed upon the

said land.

II. Land measuring 02 kanal 12 marlas (approx) bearing

plot No. 7, 8, 15 & 16 of J&K Cooperative Housing

Corporation situated at Rakh Badali, Devika Vihar

Colony, Udhampur together with residential house

constructed upon the said land.

Reference to this factual aspect is gatherable from

order dated 11.06.2021 of the Designated Authority under

sub-section (1)(a) of section 2 of the PC Act, Svt., 2006 which

being the Commissioner/Secretary General Administration

Department (GAD), Govt. of J&K.

16. In furtherance of investigation, Sr. Superintendent of

Police (SSP), ACB Udhampur, by virtue of an order dated

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17.10.2020, effected attachment of premises comprised of

1.18 kanal of land bearing khasra No. 717 new/270 old

along with a commercial building thereupon known as “Dogri

Haveli” related to the petitioner herein. This exercise of

attachment was in purported exercise of powers under section

8-B of the PC Act, Svt., 2006. Reference to fact of passing of

said order dated 17.10.2020 is gatherable from order dated

23.06.2021 of the Special Judge (Anti-Corruption), Udhampur

on file No. 10/Cri. Appeal of 2021 and file No. 12/Anti

Corruption/appeal of 2021.

17. The aforesaid order dated 17.10.2020 effecting

attachment of the property mentioned therein in para 3 at

serial No. a, b, c, d & e came to be confirmed by an order of

confirmation dated 15.01.2021 passed by the Designated

Authority as per requirement under section 8-B of the PC Act,

Svt., 2006.

18. Reckoning the aforesaid course of action being

prejudicial to his position, the petitioner’s father – Rakesh

Kumar Pargal came to prefer an appeal on file No. 10/Cri.

Appeal on 12/02/2021 before the court of Special Judge (Anti

Corruption), Udhampur.

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19. The institution of aforesaid appeal on file No. 10/Cri.

Appeal by the petitioner’s father -Rakesh Kumar Pargal was as

a matter of remedy under section 8-C of the PC Act, Svt., 2006.

20. The aforesaid development came to be followed by

issuance of a letter No. SSP/ACB-UR/FIR/01-20/496 dated

09.03.2021 for the purpose of submitting a detailed report

accompanying therewith to the Director, Anti Corruption

Bureau, J&K, Jammu for the purpose of accord of approval for

attachment of :-

(i) Land measuring 7 kanals 5 marlas bearing khasra

No. 715, 716, 719 & 732 situated at village Ballian,

NHW, Udhampur mutated in the name of Amit

Mahajan & Summit Mahajan, Sons of Kasturi Lal

Mahajan R/o H. No. 51 B/C, Gandhi Nagar, Jammu

together with commercial building, namely, Feelings

Farm (Banquet Hall) constructed thereupon with all

fixtures.

(ii) Plot No. 07, 08, 15 & 16 (total land measuring 02

kanals 12 marlas approximately) situated at Rakh

Badali, Devika Vihar Colony near SKPA, Udhampur

purchased by Sumit Mahajan, Amit Mahajan, Veena

Mahajan & Kasturi Lal Mahajan together with

residential house constructed thereupon with all

fixtures as benami properties under section 8-B of the

PC Act, Svt., 2006.

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21. From the end of the Director, Anti Corruption

Bureau, J&K, Jammu , an approval for attachment of the

aforesaid properties came to be granted by an Order No.

ACB/FIR/01-2020-J-611 dated 10.03.2021 in purported

requirement of section 8-B of PC Act, Svt., 2006.

22. With said approval of attachment in his hand, the Sr.

Superintendent of Police (SSP), ACB, U R, as being the

Investigator of the case, in exercise of power under section 8-B

of the PC Act, Svt., 2006 by virtue of an order No.

SSP/ACB/UR/01/2020/512- 16 dated 13.03.2021, came to

order the attachment of aforementioned two properties as

benami properties of Rakesh Kumar Pargal with further

direction to him as well as his family members and Amit

Mahajan, Sumit Mahajan, Veena Mahajan and also their

family members not to transfer or otherwise deal with the

attached properties so named in the order.

23. This development in the form of issuance of order No.

SSP/ACB/UR/01/2020/512- 16 dated 13.03.2021 by the Sr.

Superintendent of Police (SSP), ACB, UR led to filing of a writ

petition WP(C) No. 518/2021 on 15/03/2021 by the

petitioner assailing the aforesaid course of action. This writ

petition was filed by the petitioner along with his brother –

Digvijay Pargal.

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24. On the other hand, Sr. Superintendent of Police

(SSP), ACB, UR came forward with a referral report

No.SSP/ACB-UR/FIR/01-20/523- 25 dated 15.03.2021 to the

Designated Authority envisaged section 2(1)(a) of PC Act, Svt.,

2006 for confirmation of the attachment order dated

13.03.2021.

25. The petitioner, at his end also came to invoke

appellate remedy available under section 8-C of PC Act, Svt.,

2006 thereby challenging the order of attachment dated

13.03.2021 passed by the Sr. Superintendent of Police (SSP),

ACB, UR in terms whereof the two properties attached thereby

were suffering attachment and awaiting confirmation from the

Designated Authority under section 2(1)(a) of PC Act, Svt., 2006

in response to referral report No. SSP/ACB-UR/FIR/01-

20/523-25 dated 15.03.2021 of Sr. Superintendent of Police

(SSP), ACB, UR.

26. The petitioner instituted his appeal on 22.03.2021

on file No.12/Anticorruption/Appeal before the Special Judge

(Anti Corruption), Udhampur.

27. At the time of filing of the petitioner’s said appeal, the

petitioner’s father Rakesh Kumar Pargal’s appeal on file No.

10/Cri. Appeal was already pending before the Special Judge

(Anti Corruption), Udhampur addressed against order dated

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15/01/2021 of the Designated Authority of the

Commissioner/Secretary to Govt., General Administration

Department, Govt., of J&K which in turn had confirmed order

dated 17/10/2020 of the SSP, ACB Udhampur .

28. After having invoked the appellate remedy before the

Special Judge (Anti Corruption), Udhampur, the petitioner

came to withdraw his writ petition WP(C) No. 518/2021 which

came to be dismissed as withdrawn on 05.04.2021.

29. By virtue of a notice No. GAD(Vig)37/2020-I dated

05.04.2021, the Designated Authority came forward with a

notice for appearance of the parties before it. The Designated

Authority so issuing a notice was Commissioner/Secretary to

Government, General Administration Department, Govt. of

J&K.

30. By virtue of an order dated 11.06.2021, the

Designated Authority, in exercise of powers under section 8-

B(3) of PC Act, Svt., 2006 came to confirm the order of the

properties’ seizure/attachment so issued by the Investigating

Officer. The exercise of jurisdiction by the Designated Authority

was purportedly upon the referral report No. SSP/ACB-

UR/FIR/01-20/523- 25 dated 15.03.2021 of Sr.

Superintendent of Police (SSP), ACB, UR.

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31. The petitioner was one of the parties attending the

proceedings before the Designated Authority, objecting to the

very attachment of the properties in particular the Banquet

Hall known as “Feeling Farms” existing upon khasra Nos.

715, 716, 719 & 732 at village Ballian, National Highway,

Udhampur.

32. The land parcel housing the said banquet hall of

“Feeling Farms” was shown by the petitioner to the extent of

proving before the Designated Authority that the same was

owned by Amit Mahajan and Sumit Mahajan both sons of

Kasturi Lal Mahajan, whereas the use of said land was availed

by the petitioner for setting up of a prefabricated structure in

the form of a banquet hall and open lawn commonly known as

“Feeling Farms” encompassing 7.5 kanals of land. The

business venture of the petitioner for running the said banquet

hall was shown to be backed by financial assistance availed by

the petitioner and his brother from the financial institutions

amounting to Rs. 95 lacs to Rs. 1 crore against the mortgage of

the property and gold loans etc.

33. After hearing the petitioner and other respondents in

the proceedings before it and also the counsel for the

Investigating Officer of ACB, UR, the Designated Authority

came forward with a purported finding that claim about

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property in question been acquired through legal source of

money is factually not correct as total amount from legal

sources as well as bank loans raised is lesser than the amount

incurred on the construction of the banquet hall, namely,

“Feeling Farms” and further that the petitioner and his

brother, as being sons of Rakesh Kumar Pargal, raised the

property with the help of their father i.e. Rakesh Kumar Pargal

as had purportedly emerged during the course of investigation

conducted so far till date wherein it had surfaced that an

amount of Rs. 82,40,735.10 had been circulated/channelized

by Rakesh Kumar Pargal in the business activities of his sons

i.e. the petitioner and his brother thereby prima facie

establishing that Rakesh Kumar Pargal had utilized his ill-

gotten money earned by indulging in corrupt practices and

illegal practices during his service in establishing the business

of his sons i.e. the petitioner and his brother.

34. Even with respect to the title of the property of land

in khasra No. 717, same was taken to be benami held in the

name of Amit Mahajan and Sumit Mahajan and in observing

so the Designated Authority drew an inference from the fact

that there was no rent-deed/lease-deed held by the petitioner

from Amit Mahajan and Sumit Mahajan.

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35. The assessment of the premises of “Feeling Farms”

and “Dogri Haveli” was reckoned to be at a value of Rs. 3

crores as against the loan availed of Rs. 95 lacs to Rs. 1 crore

by the petitioner on the basis whereof the Designated Authority

ruled out any justification that the assets were raised by the

known sources of income by Rakesh Kumar Pargal and his

family members.

36. Thus, by virtue of an order dated 11.06.2021, the

attachment came to be confirmed by the Designated

Authority.

37. Immediately following passing of the order dated

11.06.2021 by the Designated Authority, the Special Judge

(Anti Corruption), Udhampur, on the other hand by virtue of a

common order dated 23.06.2021, came to dispose of two

pending appeals i.e. appeal of the petitioner’s father Rakesh

Kumar Pargal on file No. 10/Cri. Appeal and the petitioner’s

appeal on file No. 12/Anticorruption/Appeal , which were

addressed against order dated 15.01.2021 passed by the

Designated Authority of Commissioner/Secretary to Govt.,

General Administration Department, Govt. of J&K with respect

to the attachments of the properties which were enlisted in

para 3 at serial No. a, b, c, d & e. Reference in this regard is

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made in para 4 of order dated 23.06.2021 of Special Judge

Anti-Corruption, Udhampur.

35. The appellate court of Special Judge (Anti

Corruption), Udhampur came to formulate three points for its

consideration for adjudication of said two appeals and said

three points were:-

1. Whether the appellant Dheeraj Pargal had the

financial capacity to purchase the land & raise

the structure named as Dogra Havilli upon that

land?

2. Whether the designated authority did not

associate the owner of the property namely

Dheeraj Pargal before confirming the

attachment/seizure order passed by the I.O

therefore, the designated authority has not

followed the principle of natural justice?

3. Whether the designated authority has

confirmed the seizure order with there being

any apprehension of property being sold or

otherwise disposed of?

36. The court of Special Judge (Anti Corruption) ,

Udhampur by reference to point No. 1 came to hold that the

inference drawn by the Investigating Officer that the property

purchased by the appellant Rakesh Kumar Pargal, the

petitioner was acquired by ill-gotten money being proceeds of

alleged crime was premature, not based on material evidence

but on assumption and presumption as the appellant –Dheeraj

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Pargal, the petitioner had independent resources and capacity

to create the resources to purchase the seized land and the

structure constructed upon said land. The point No. 1, thus,

came to be answered accordingly.

37. On point No. 2, the court of Special Judge (Anti

Corruption), Udhampur by referring to the provisions of

sections 8-B & 8-C of PC Act, Svt., 2006 came to hold that the

Designated Authority was pre-determined to confirm the order

pertaining to the seizure of the property passed by the

Investigating Officer.

38. Point No. 3, as to whether there was intent to dispose

of the attached property also came to be held against ACB,

Udhampur.

39. In final terms, it came to be held that the attached

property is the land of the appellant- Dheeraj Pargal, the

petitioner herein who was not figuring as an accused in said

FIR No. 01/2020 and was, thus, not under any investigation

but still without any notice served or given to him before

confirming attachment, the Designated Authority, without any

just and reasonable cause, condemned the petitioner Dheeraj

Pargal unheard rendering the confirmation order in

contravention of section 8-B, sub-section 3 of the PC Act, Svt.,

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2006 besides being violative of rules of natural justice

rendering confirmation order unsustainable in the eyes of law.

40. Consequently, the Special Judge (Anti Corruption),

Udhampur, by virtue of its order dated 23.06.2021, came to

set aside the order of attachment passed by the Investigating

Officer and also order of confirmation passed by the

Designated Authority but simultaneously mandated the

petitioner’s father- Rakesh Kumar Pargal and the petitioner

herein not to sell/part with/encumber or otherwise dispose of

the attached property for a period of one year or till the

investigation was to complete or fresh order of attachment was

drawn whichever was to happen earlier.

41. On the other hand, order dated 11.06.2021 of the

Designated Authority came to be challenged in three different

appeals before the Court of Special Judge (Anti Corruption),

Udhampur. By virtue of said order dated 11.06.2021, two

properties which came to be subject matter of attachment

were:-

I) A plot of land measuring 07 kanal 05 marlas under

khasra Nos. 715, 716, 719 & 732 situated at village

Ballian, Udhampur together with building namely

Feeling Farms (Banquet Hall) constructed upon the

said land.

II) Land measuring 02 kanal 12 marlas (approx) bearing

plot No. 7, 8, 15 & 16 of J&K Cooperative Housing

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Corporation situated at Rakh Badali, Devika Vihar

Colony, Udhampur together with residential house

constructed upon the said land.

42. In terms of this order dated 11.06.2021, the

Designated Authority of Commissioner/Secretary to Govt.,

General Administration Department, Govt., of J&K confirmed

the attachment of the aforesaid two properties.

43. This order dated 11.06.2021 generated three

statutory appeals with scope provided therefor under PC Act,

Svt., 2006.

44. In this regard, the petitioner came forward with an

appeal on file No. 12/Cr. Appeal instituted on 13.07.2021,

appeal filed by the petitioner’s father-Rakesh Kumar Pargal on

file No. 13/Cr. Appeal instituted on 13.07.2021 and 3rd

appeal preferred by Amit Mahajan & Sumit Mahajan on file

No. 14/Cr. Appeal instituted on 13.07.2021.

45. All the said appeals were filed under section 8-C of

PC Act, Svt., 2006 challenging said order dated 11.06.2021 of

the Designated Authority.

46. By a common order dated 27.11.2021, the Special

Judge (Anti Corruption), Udhampur came to dispose of

aforesaid three appeals.

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47. In para 12 & 17 of order dated 27.11.2021, the two

properties in issue came to be referred by the Special Judge

(Anti-Corruption), Udhampur.

48. In para 22 of its order dated 27.11.2021, the court

of Special Judge (Anti Corruption), Udhampur came to hold

that attached property “B” of land measuring 2 kanals 12

marlas approximately, bearing plot No. 7, 18, 15 & 16 of the

J&K Cooperative Housing Corporation situated at Rakh Badali,

Devika Vihar Colony, Udhampur together with residential

house constructed thereupon belongs to two appellants -

Sumit Mahajan and Amit Mahajan of appeal No. 14/Cr.

Appeal, though, there is no authentic document with respect to

the construction of house thereupon.

49. The Special Judge (Anti Corruption), Udhampur came

to hold that the Designated Authority ought to have issued

notices to Sumit Mahajan and Amit Mahajan and their

parents, namely, Kasturi Lal Mahajan and Veena Mahajan so

as to hear them before confirming attachment/seizure order

passed by Sr. Superintendent of Police (SSP), ACB, UR as

without issuance of any notice to said four named persons, the

confirmation order passed by the Designated Authority was in

contravention of section 8-B(3) of PC Act, Svt., 2006 and to that

extent the order was held to be not sustainable.

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50. With respect to the attached property “A” of plot of

land measuring 7 kanals 5 marlas comprising khasra No.

715, 716, 719 & 732 at village Ballian, Udhampur together

with building, namely, “Feeling Farms” (Banquet Hall)

constructed upon said land, the confirmation of attachment by

the Designated Authority was held sustainable but it came to

be observed that the investigation of case FIR No. 01/2020

was yet to be completed.

51. Therefore, to said extent of property “A” the order of

confirmation was modified by permitting the appellants –

Sumit Mahajan and Amit Mahajan to use the property but

without any liberty to sell, part with, encumber or otherwise

dispose of the said property till investigation/trial is completed

or fresh order of attachment is drawn whichever happening

earlier or with the permission of the Director, ACB or the Court.

52. The status of attached property of “Feeling Farms”

(Banquet Hall) was confirmed by directing the Investigating

Officer i.e. Sr. Superintendent of Police (SSP), ACB, UR to

ensure the safety of attached/seized property of Feeling Farms

(Banquet Hall).

53. It is against the aforesaid outcome of his appeal that

the petitioner herein came forward with institution of the

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present writ petition WP(C) No. 290/2022 on 15.02.2022

seeking the following reliefs:-

A. Certiorari:

a. Quashing FIR 01 of 2020, registered by Police Station Anti-

Corruption Udhampur,

b. Order dated 27-11-2021, passed by the Learned Special

Judge, Anti-Corruption Udhampur by virtue of which the

Learned Court has dismissed the appeal of the petitioner

against the order of Designated Authority (Under the provisions

of Jammu and Kashmir Prevention of Corruption Act, 2006)

dated 11-0602021.

c. Order dated 11/06/2021 passed Designated Authority (Under

the provisions of Jammu and Kashmir Prevention of Corruption

Act, 2006) confirming the order of attachment passed by

respondent 02.

d. Order of the attachment dated 13-03-2021, passed by the SSP

Anti-Corruption Bureau Udhampur, qua the attachment of

banquet namely “Feeling Farms,”

As being illegal, without jurisdiction and against the

interest of justice.

B. Mandamus declaring section 8-B of J&K Prevention of Corruption

Act as unconstitutional being violative of Article 14, 19 & 21 of the

Constitution of India.

C. The Hon’ble Court may also pass any other writ, order of direction

as this Hon’ble Court may deem fit and proper in the facts and

circumstances of the case.

54. Following the institution of the writ petition WP(C)

No. 290/2022, came the institution of the writ petition WP(C)

No. 293/2022 this one preferred by the two petitioners i.e.

Amit Mahajan & Sumit Mahajan who also being aggrieved of

the outcome of their appeal in terms of an order dated

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27.11.2021 passed by learned Special Judge (Anti Corruption),

Udhampur to the extent relating to the confirmation of

attachment of land measuring 7.5 kanals comprising khasra

No. 715, 716, 719 & 732 situated at village Ballian, tehsil &

district Udhampur whereupon “Feeling Farms” (Banquet Hall)

related to the petitioner – Dheeraj Pargal of WP(C) No.

290/2022 was obtaining.

55. The relief claimed by the writ petitioners – Amit

Mahajan & Sumit Mahajan in their writ petition WP(C) No.

293/2022 is to the following effect:-

A. Quashing:

(i) FIR No. 01/2020, Police Station Anti-Corruption Bureau,

Udhampur;

(ii) Order of attachment dated 13/03/2021 as issued by

respondent 02;

(iii) Order dated 11/06/2021, as passed by respondent 01,

whereby order of attachment dated 13/03/2021 was

confirmed;

(iv) Order dated 27/11/2021, passed by Ld. Special Judge

Anti-Corruption, Udhampur, where under, Ld. Special

Judge has declined to release property of the petitioners-

land measuring 7 Kanals 5 Marlas bearing Khasra Nos.

715, 716, 719 and 732 situated at village Vallian, Tehsil

and District Udhampur, as being against the interest of

justice.

B. Declaring Section 8-B of J&K Prevention of Corruption act as

ultra vires being violative of Article 14, 19 and 21 of Constitution

of India.

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C. The Hon’ble Court may also pass any other writ, order or

direction as this Hon’ble court may deem fit and proper in the

facts and circumstances of the case.

56. The reply to the writ petitions came to be filed on

05.04.2022 wherein it came to be reported that investigation

was still going on, meaning thereby an exercise which came to

be undertaken in the year 2015 by reference to PE was not still

seeing the end result in terms of investigation till April, 2022.

57. During the pendency of two writ petitions, the main

actor i.e. Rakesh Kumar Pargal came to demise on 03.11.2022

and to said effect application CM No. 696/2023 came to be

preferred on 10.02.2023 to notify the fact of death of said

Rakesh Kumar Pargal having taken place.

58. It is the death of Rakesh Kumar Pargal, the father of

the petitioner which has self-generated a proposition as to

whether the entire course of action and exercise at the end of

the respondents, genesis of which has been given hereto before,

comes to an end without any scope for further continuation of

proceedings on any basis whatsoever particularly by reference

to the status of the parties allegedly referred to the subject

matter of investigation.

59. Now, before proceeding on legal side of matter meant

for adjudication, it is essential to have the reading and

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conspectus of the relevant provisions of the PC Act, Svt., 2006

by reference to which the legal proceedings so far had been

taken vis-à-vis Rakesh Kumar Pargal and the properties

allegedly co-related with and to him. In this regard, following

sections of PC Act, Svt., 2006 are worth taking reading and

reference:-

“5. Criminal misconduct

(1) A public servant is said to commit the offence of Criminal

misconduct—

(a) if he habitually accepts or obtains or agrees to accept or

attempts to obtain from any person for himself or for any other

person, any gratification (other than legal remuneration) as a

motive or reward such as is mentioned in section 161 of the

State Ranbir Penal Code, Samvat 1989; or

(b) if he habitually accepts or obtains or agrees to accept or

attempts to obtain for himself or for any other person, any

valuable thing without consideration or for a consideration

which he knows to be inadequate, from any person whom he

knows to have been, or to be, or to be likely to be concerned in

any proceedings or business transacted or about to be

transacted by him, or having any connection with the official

functions of himself or of any public servant to whom he is

subordinate, or from any person whom he knows to be

interested in or related to the persons so concerned; or

(c) if he dishonestly or fraudulently misappropriates or

otherwise converts for his own use any property entrusted to

him or under his control as a public servant or allows any other

person so to do; or

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(d) if he, by corrupt or illegal means or by otherwise abusing

his position as public servant obtains for himself or for any

other person any valuable thing or pecuniary advantage; or

(e) if he or any person on his behalf is in possession or has,

at any time during the period of his office, been in possession,

for which the public servant cannot satisfactorily account, of

pecuniary resources or property disproportionate to his known

sources of income.

Explanation:— For the purposes of this section, “known

sources of income” means income received from any lawful

source when such receipt has been intimated in accordance

with the provisions of any law, rules or orders for the time being

applicable to a public servant”.

(1A) Notwithstanding anything contained in sub-section (1), a

member of medical or para-medical staff of the Sher-i-Kashmir

Institute of Medical Sciences, Srinagar shall be deemed to have

committed the offence of criminal misconduct if he resorts to private

practice in any form or manner. The Government shall be competen t

to notify any other Institutes or College for purposes of this section.

(2) any public servant who commits an offence of criminal

misconduct as referred to in clauses (a), (b) and (e) of subsection (I),

shall be punishable with imprisonment for a term which shall not be

less than 2 years but which may extend to seven years and shall also

be liable to fine and if he commits criminal misconduct as referred to

in clauses (c) and (d) of sub-section (1) shall be punishable and

imprisonment for a term which shall not be less than one year but

which may extend to five years and shall also be liable to fine.

(2-A) Whoever abets or aids in the commission of criminal

misconduct under sub-section (1-A) or allows his premises or Nursing

Home to be used for private practices in contravention of the said sub-

section shall be punishable with imprisonment for a term which may

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extend to three years and shall also be liable to fine which may extend

up to rupees ten thousand:

Provided that the Sher-i-Kashmir Institute of Medical Sciences,

Srinagar shall publish the names and particulars of its medical and

para-medical staff annually in at least two local dailies

(3) Whoever attempts to commit an offence referred to in clause (c)

of sub-section (1) shall be punishable with imprisonment for a term

which may extend to three years, or with fine, or with both.

(4) Where a sentence of fine is imposed under the provisions of this

Act, the Court in fixing the amount of fine shall take into

consideration the amount or the value of the property, if any, which

the accused person has obtained by committing the offence or where

the conviction is for an offence referred to in clause (e) of sub-section

(1), the pecuniary resources or property referred to in that clause for

which the accused person is unable to account satisfactorily.

(5) The provisions of this section shall be in addition to and not in

derogation of, any other law for the time being in force, and nothing

contained herein shall exempt any public servant from any proceeding

which might, apart from this section, be instituted against him.

8-B. Powers of the investigating officers–

(1) If an officer (not below the rank of Superintendent of Police) of

the Vigilance Organization, investigating an offence committed

under this Act, has reason to believe that any property in relation

to which an investigation is being conducted has been acquired by

resorting to such acts of omission and commission which

constitute an offence of ‘criminal misconduct’ as defined under section

5, he shall, with the prior approval in writing of the Commissioner of

the Vigilance Organization, make an order seizing such property

and, where it is not practicable to seize such property, make an order

of attachment directing that such property shall not be transferred

or otherwise dealt with, except with the prior permission of the officer

making such order or of the Designated Authority before whom the

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properties seized or attached are produced and a copy of such order

shall be served on the person concerned:

Provided that the Investigating Officer may, at any stage of

investigation after registration of F.I.R. in respect of any case under

the Act where he has reason to believe that such property is likely to

be transferred or otherwise dealt with to defeat the prosecution of the

case direct, with the prior approval of the Vigilance Commissioner,

that such property shall not be transferred or dealt with for such

period, not exceeding ninety days, as may be specified in the order

except with the prior approval of the Designated Authority.

[Explanation: – For purposes of this section “attachment” shall

include temporarily assuming the custody, possession and/or

control of such property].

(2) The investigating officer shall inform the Designated

Authority, within forty eight hours, of the seizure or attachment of

such property together with a report of the circumstances

occasioning the seizure or attachment of such property, as the case

may be.

(3) It shall be open to the Designated Authority before whom the

seized or attached properties are produced either to confirm or

revoke the order of seizure or attachment so issued within 4

[thirty days]:

Provided that an opportunity of being heard is afforded to the

Investigating Officer and the person whose property is being attached

or seized before making any order under this sub-section:

Provided further that till disposal of the case the Designated

Authority shall ensure the safety and protection of such property.

(4) In the case of immovable property attached by the

investigating officer, it shall be deemed to have been produced before

the Designated Authority, when the investigating officer notifies his

report and places it at the disposal of the Designated Authority.

(5) Any person aggrieved by an order under the proviso to sub-

section (1) may apply to the Designated Authority for grant of

permission to transfer or otherwise deal with such property.

(6) The Designated Authority may either grant, or refuse to grant,

the permission to the applicant.

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(7) The Designated authority, acting under the provisions of this

Act, shall have all the powers of a civil court required for making a full

and fair enquiry into the matter before it.

8-C. Appeal against the order of Designated Authority –

(1) Any person aggrieved by an order made by the Designated

Authority under sub-section (3) or subsection (5) of section 8-B 1

[may prefer an appeal, within one month from the date of receipt of the

order, to the Special Judge] (Anti-Corruption) (hereinafter referred to

as Special Court) and the Special Court may either confirm the

order of attachment of property or seizure so made or revoke such

order and release the property or pass such order as it may deem

just and proper.

(2) Where any property is seized or attached under section 8- B

and the Special Court is satisfied about such seizure or attachment, it

may order forfeiture of such property, whether or not the person

from whose possession it is seized or attached is prosecuted in

the Special Court for an offence under this Act.

(3) It shall be competent for the Special Court to make an order in

respect of property seized or attached,–

(a) directing it to be sold if it is a perishable property and the

provisions of section 525 of the Code of Criminal

Procedure, Samvat 1989 shall, as nearly as may be

practicable, apply to the net proceeds of such sale;

(b) nominating any officer of the Government, in the case of

any other property, to perform the function of the

Administrator of such property subject to such

conditions as may be specified by the Special Court.

8-D. Issue of show cause notice before forfeiture of the

property–

No order under sub-section (2) of section 8-C shall be made by

the Special Court –

(a) unless the person holding or in possession of such

property is given a notice in writing informing him of the

grounds on which it is proposed to forfeit such property

and such person is given an opportunity of making a

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representation in writing within such reasonable time as

may be specified in the notice against the grounds of

forfeiture and is also given a reasonable opportunity of

being heard in the matter;

(b) if the person holding or in possession of such property

establishes that he is a bona fide transferee of such property

for value without knowing that such property has been so

acquired.

8-E. Appeal. –

(1) Any person aggrieved by order of forfeiture under

section 8-C may within one month from the date of the receipt

of such order, appeal to the High Court.

(2) Where any order under section 8-C is modified or

annulled by the High Court or where in a prosecution

instituted for the contravention of the provisions of this Act,

the person against whom an 1 [order of the special court] has

been made is acquitted, such property shall be returned to

him and in either case if it is not possible for any reason to

return the forfeited property, such person shall be paid the

price therefore as if the property had been sold to the

Government with reasonable interest calculated from the date

of seizure of the property and such price shall be determined

in the manner prescribed.”

60. The interplay of the aforesaid provisions, if put in

simple words, would present the picture that an Investigating

Officer seized of an investigation with respect to commission of

offence/s under P C Act, Svt., 2006 by a named public servant

can effect and order seizure of property with respect to which

he has reason to believe that such a property, being subjected

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to an investigation conducted by him, has been acquired by

resorting to acts of omission and commission amounting to

offence of criminal misconduct as defined in section 5 of the PC

Act, Svt., 2006.

61. This act of seizure of property under investigation is

then reportable from the end of the Investigating Officer to a

Designated Authority within stipulated period of time

prescribed with a factual report which occasioned the

seizure/attachment of such a property.

62. This transition of act of seizure/attachment of

property from Investigating Officer to Designated Authority

is with a purpose to subject the seizure/attachment to

confirmation or revocation at the end of the Designated

Authority.

63. This exercise of authority of confirmation o r

revocation at the end of the Designated Authority is supposed

to be a serious exercise envisaging an opportunity of being

heard extended to a person whose purported property has

suffered attachment or seizure.

64. Next tier of this exercise of seizure/attachment from

the end of the Investigating Officer leading up to confirmation

or revocation of seizure/attachment at the end of the

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Designated Authority is that of an appeal available to an

aggrieved person of order of confirmation or revocation of the

seizure/ attachment of the property in question, meaning

thereby even the Investigating Officer can be an aggrieved

person on suffering revocation of seizure/attachment of

property by the exercise of discretion of the designated

authority and equally said aggrieved person can be the person

whose property has suffered confirmation of seizure/

attachment by an order at the end of the designated authority.

65. For both the situations, a person aggrieved is vested

with a right of appeal to the Special Court which also is called

upon to exercise appellate authority either to confirm the order

of attachment/seizure of the property or revocation of such

order of the designated authority.

66. Outcome of such an appeal preferred by an aggrieved

person, if results in confirmation of the order of the Designated

Authority having confirmed the seizure/attachment, takes

forward the exercise towards forfeiture in terms of sub-section

2 of section 8-C for doing which another tier of procedure is

envisaged to be resorted to by the Special Court which is

provided under section 8-D.

67. It is only by an interplay of exercise of jurisdiction

under sub-section 2 of section 8-C and 8-D that the forfeiture

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of a property dealt with by an Investigating Officer under sub-

section 1 of section 8-B can take place thereupon a further

right of an appeal is reserved in favour of an aggrieved person

which appeal is to lie before the High Court.

68. In the case of such an appeal before the High Court,

if the order of the Special Court declaring forfeiture of a

property in reference is upheld, then the forfeited property is to

be dealt with as per sub-section 2 of section 8-E.

69. Now, when this Court bears in mind the facts and

circumstances of this case, then it is an inescapable fact that

the forfeiture proceedings never took off as there was no

confirmation accorded by the Special Court to the properties

which were subjected to attachment by the Investigating

Officer and confirmed by the Designated Authority.

70. Simultaneously, the investigation in the case had not

resulted in presentation of any final police report for booking

the public servant-Rakesh Kumar Pargal and/or other persons

by reference to their complicity in the alleged acts of omission

or commission vis-à-vis the property suffering under

investigation by reference to section 5 of P C Act, Svt., 2006.

71. From the scheme of the provisions of section 8-B to

section 8-E, it is very clear that the entire exercise envisaged

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there under is not an independent exercise in itself divorced

from the investigation process and its outcome so as to

distance itself from the fate of the final investigation and

sustain itself independently vis-à-vis the property in reference

whether in the course of suffering a forfeiture or having

suffered a forfeiture.

72. In the case of Delhi Development Authority Vs

Skipper Construction Company (P) Ltd. & another, 1996

AIR SC 2005, the Hon’ble Supreme Court of India had the

occasion of dealing with the concept of earning of properties by

a person by smuggling or other illegal means and all such

properties whether standing in his name or in the name of his

relatives or associates bearing liability of forfeiture to the State

and the entire concept was understood from resulting trust and

equity. In paras 29 & 30 exposition to this effect has been

made by the Hon’ble Supreme Court of India to the utmost

point of clarity.

73. Before this Court proceeds further, this Court adverts

to the judgment of the Hon’ble Supreme Court of India in the

case of Yogendra Kumar Jaiswal Vs State of Bihar and

others, 2016 AIR SC 1474 in which the Hon’ble Supreme

Court of India has very extensively dealt with the nature of

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confiscation proceedings under the Prevention of Corruption

Act, 1988 by reference to Orissa Special Courts Act, 2006.

74. In the case of Mustafa Vs State of Uttar Pradesh,

AIR 2019 SC 3949 , the essential nature of confiscation and

the essence of proceedings as being independent or dependent

came to be dealt with.

75. With respect to the maintainability of the writ petition

for the nature of the relief being sought, this Court is vested

with the judicial review jurisdiction to examine the criminal

cases as has been held by the Hon’ble Supreme Court of India

in the case of M/s Pepsi Food Ltd. and another Vs Special

Judicial Magistrate & others, AIR 1998 SC 128.

76. When this Court examines the scheme of the

provisions of section 8-B to 8-E of PC Act, Svt., 2006 in the

light of the provisions of law dealt with by the Hon’ble Supreme

Court of India in the case of Yogendra Kumar Jaiswal supra,

the distinction comes out loud and clear that the exercise of

seizure/attachment at the hands of the Investigating Officer

then resulting in confirmation proceedings before the

Designated Authority which definitely is not a judicial officer

but an officer of the Establishment of the Vigilance

Organization, is by no means adjudicatory in its essence as

contrast to the confirmation proceedings before the Special

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Court which is also two tier based, firstly of confirming the

order of the Designated Authority and thereupon to take said

confirmation towards forfeiture.

77. This nature of proceedings towards forfeiture has an

end situation provided in section 8-F of the P C Act, Svt., 2006

which provides that in the event of acquittal of a person

suffering prosecution for commission of offence under section 5

of the PC Act, Svt., 2006, the property which has suffered

forfeiture is to be returned to him and if it is not possible for

return of said forfeited property then to pay the price as per

prevailing market rate, as if the property had been sold to the

Government with reasonable interest calculated from the date

of seizure of the property.

78. This aspect of section 8-E of the P C Act, Svt., 2006

confirms that forfeiture of property under investigation in this

case is not to be read as a confiscation of the property once for

all and it is by this reference and relation that the fact of death

of Rakesh Kumar Pargal, being the public servant under

investigation by reference to FIR No. 01/2020, has to bring a

closure to the entire proceedings otherwise borne out of the

application and operation of section 8-B and 8-C of the P C

Act, Svt., 2006.

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79. Therefore, this Court has no iota of doubt that the

entire canvass of proceedings under sections 8-B to 8-E of the

P C Act, Svt., 2006 is very essentially dependent upon the fact

as to whether the offender booked for alleged commission of

offence/s under section 5 of the PC Act, Svt., 2006 has been

arraigned and put to trial or not.

80. Though, the Investigating Officer was not able to

salvage the attachment proceedings of the properties by

purported reference to Rakesh Kumar Pargal’s alleged corrupt

means as a public servant but even if it were to be assumed

that the attachment proceedings in the case upto confirmation

stage attained finality, with forfeiture part remaining to be

adjudicated from the end of the court of Special Judge (Anti

Corruption), Udhampur, even when the investigation has not

reached to its logical end, the death of Rakesh Kumar Pargal-

the accused, is supposed to bring the curtains down on the

entire matter in view of the following three legal maxims, which

are, “crimina morte extinguuntur” which means “crimes are

extinguished by death”, 2

nd one “poena ex delicto defuncti,

haeres teneri non debet” which means “the heirs not to be

penalized for the wrong or crime of the descendant” and 3

rd one

is “in haeredes non solent transire actiones quae

paenales maleficio” which means “penal actions arising from

anything of a criminal nature do not pass to heirs”.

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81. In the light of the aforesaid, this Court is allowing

both the writ petition by holding that FIR No. 01/2020 and

the investigation thereunder are no more sustainable because

of death of Rakesh Kumar Pargal and the ancillary proceedings

of attachment of the properties and the confirmation thereof

are also rendered infructuous and, therefore, are to be restored

to the original owners who are the petitioners of WP(C) No.

290/2022 and the petitioners of WP(C) No. 293/2022.

Attachment effected to all the properties is, thus, quashed.

82. The detailed judgment is following the order dated

15.12.2023 vide which the writ petitions were ordered to be

allowed as are hereby being done.

83. Disposed of.

(RAHUL BHARTI)

JUDGE

JAMMU

21.07.2026

Muneesh

Whether the judgment is speaking : Yes / No

Whether the judgment is reportable : Yes / No