Dheeraj Pargal vs Ut Of J&K And Another on 21 July, 2026

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    Jammu & Kashmir High Court

    Dheeraj Pargal vs Ut Of J&K And Another on 21 July, 2026

    Author: Rahul Bharti

    Bench: Rahul Bharti

                                                                                    2023:JKLHC-JMU:5727
    
    
    
    
                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                AT JAMMU
    
    
    Case:-        WP(C) No. 290/2022
                  c/w
                  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.

    SPONSORED

    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, UR, 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 competent

    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 or

    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”, 2nd 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 3rd 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

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