CRR No. 13/2017

Page 1 of 8

IN THE HIGH C0URT 0F JAMMU AND KASHMIR

AT SRINAGAR

CRR No. 13/2017

Reserved on 17.03.2021.

Pronounced on 02.04.2021

Ghulam Hassan Sofi &Anr.

…Petitioner(s)

Through: Mr. Altaf Haqani, Sr. Adv. With Shakir Haqani, Adv.

Vs.

State of JK through VOK Kashmir

...Respondent(s)

Through: Mr B. A. Dar, Sr. AAG with

Ms. Saba Gulzar, Assisting Counsel

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

1.

The order dated 10^th April 2017 (hereinafter referred to as the 8order

impugned) passed by the learned court of Special Judge Anti-

Corruption Srinagar (hereinafter referred to as trial court) has been

impugned by the petitioner through the medium of present petition by

virtue of which the learned trial court has directed the SSP VOK

Srinagar (now ACB) to conduct or get conducted further investigation

on the aspects stated in the order.

2.

The petitioner has challenged the order impugned on the following

grounds: -

(i)

That once the court had taken a cognizance of

offence under section 5 (2) PC Act, power to order

further investigation could not have been invoked by

the learned trial court, as the learned trial court was

not competent to switch back to the pre-cognizance

stage.

(ii)

That the order impugned is liable to be quashed as

the learned trial court had no power to order further

CRR No. 13/2017

Page 2 of 8

investigation on its own, without any motion or

application on the part of the investigating /

prosecuting agency. The trial court has infact passed

the order impugned so as to unable the prosecution

to fill up the lacunas in their case and the order

impugned amounts to ordering reinvestigation.

(iii) That the learned trial court had not heard the

petitioner for the purposes of passing orders on the

issue of further investigation as the trial court had

simply heard the arguments on charge/discharge of

the accused.

3.

Before examining the issues raised by the petitioner, it is necessary to

have the brief resume of the allegations leveled against the petitioner.

4.

The charge sheet for commission of offence under section 5 (2) PC Act

read with 109 RPC was filed against the petitioner and the other

accused on the ground that the petitioner is in possession of

disproportionate assets to the extent of Rs.67,88,189/-. It is further

stated in the charge sheet that the petitioner was appointed as a Patwari

in the year 1974 and was posted in Rakhs and Farms Department and

served there for about a decade and later on was transferred to the

Revenue Department District Budgam. The check period in the case of

the petitioner has been fixed from 1986 to 2006. During this whole

period, the total income of the petitioner was Rs.13,72,324/- and

expenditure during check period has been considered as Rs. 5,96,921/-

whereas the income at the beginning of the check period of the

petitioner was Rs. 3,53,816/-. The prosecution has determined the total

value of the assets acquired by the petitioner during the check period as

Rs. 79,17,408/-.

5.

The prosecution has alleged the petitioner to have acquired following

immovable assets through various deeds/mutations either in his name or

CRR No. 13/2017

Page 3 of 8

in the names of his relatives. Details of the same are reproduced as

under:-

S.

No.

Details

of

properties

Situated at

Mode

of

acquisition

Declared

value

Cost

assessed.

On

the

name of

1.

Three storied

house double

storeyannexe

and six shops

have

been

constructed

on 2.5 kanals

Krimshore Gift

----------

23,19,455/- Gh.

Mohd.

Bhat

2.

Residential

house

at

Gulberg

Colony

Hyderpora

Gulbery

Colony,

Huderpora

19,81,799/- Self

3.

03

&

02

marlas

Krimshore Gift

Two Sons

4.

01

kanal

14marlas

Krimshore Gift

Total

consideration

for 1 K.19-

M. 1.57 lacs

Gh. Mohd

Bhat

5.

6 marlas

Krimshore Gift

90,000/-

Gh.

Mohd.