Jammu & Kashmir High Court
Dheeraj Pargal vs Ut Of J&K And Another on 21 July, 2026
Author: Rahul Bharti
Bench: Rahul Bharti
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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, 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
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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-Ã -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-Ã -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-Ã -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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