Jammu & Kashmir High Court - Srinagar Bench
Irshad Ahmad Famda vs < on 27 October, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
S. No. 252
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on 19.10.2020
Pronounced on 27.10.2020
Crl R No. 5/2020
CrlM No. 275/2020
Irshad Ahmad Famda ...Petitioner/Applicant(s)
Through :- Mr. Shuja Ul Haq, Advocate
V/s
<
Union Territory of J&K and another .....Respondent (s)
Through :- Ms. Asifa Padroo, AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(through Video Conference from residence in Jammu)
JUDGMENT
d
1. Mr. Shuja-Ul-Haq, learned counsel for the petitioner at the very outset prayed that the present revision petition be treated as petition under section 482 Cr.P.C. Prayer is accepted. Ordered accordingly.
2. The instant petition has been filed by the petitioner assailing order dated 12.06.2020 passed by the Judicial Magistrate 1st Class (JMIC), Ganderbal by virtue of which the application seeking release of bank account No. 0678040100001164 in the J&K Bank Branch Office, Mansar, filed by the petitioner, has been rejected.
3. The brief facts those are necessary for adjudication of this petition are that the petitioner initially was not an accused in FIR No. 40/2019 dated 06.07.2019 under sections 420, 492, 506 and 120-B RPC lodged by one Shabir Ahmed Chopan (complainant) registered with Police Station, Kangan and during 2 Crl R No. 5/2020 investigation, he was subsequently arrayed as accused. In the FIR (supra), the complainant had leveled allegations that he was duped of Rs 8,00,000/-. After the complicity of the petitioner was found during investigation, his account No. 0678040100001164 was frozen by respondent No. 2. The petitioner was initially admitted to bail on 09.08.2019, however, due to the situation arisen due to abrogation of article 370, the petitioner had to flee from Kashmir and also due to communication gap, the bail application of the petitioner was dismissed by the court on 19.11.2019 due to absence of the petitioner. The petitioner also filed an application before the court of learned JMIC Ganderbal for de-freezing the account (supra) but the same was dismissed by the court vide order dated 12.06.2020 (supra), that is impugned in the present petition.
4. The petitioner has challenged the order impugned inter alia and primarily on the ground that petitioner being the registered migrant with the Relief Commissioner, Jammu is also getting monthly installment of migrant relief and the same gets credited in the above account but as the account has been frozen by respondent No. 2, he is not in a position to withdraw the said monthly income as such, it has become difficult for him to sustain himself. It is further pleaded that the amount that is being credited every month into the above mentioned account of the petitioner cannot be termed as a stolen property or property regarding which there is suspicion of commission of offence. It is further contended that while passing the order impugned the court below got swayed by the fact that the bail application of the petitioner was dismissed so the petitioner is absconder.
5. Pursuant to the direction of this Court, respondent No. 2 has placed on record the certificate issued by the J&K Bank Business Unit, Kangan in which it is stated that at the time of debit freeze, i.e, on 16.07.2019, a sum of Rs. 3 Crl R No. 5/2020 11,086/- was lying in the account of the petitioner and from the statement of the account placed on record by respondent No. 2, it is evident that after 16.07.2019, a sum of Rs.13,000/- has been credited in the account of the petitioner every month under heading NACH-SEC-RELATED EXPEN and as on 06.07.2020 a sum of Rs. 1,70,109.79/- is lying in the account of the petitioner.
6. Mr. Shuja-Ul-Haq, learned counsel for the petitioner has not disputed the power of the Police to seize/freeze the bank account but he contends that it is only the amount lying in the bank account that is either the stolen property or regarding which there is a suspicion of commission of any offence can be frozen/seized. He further contends that the amount that is being credited into the account of the petitioner as a migrant relief, that too after the date of the freezing of the account cannot be permitted to be withheld. Learned counsel has further submitted that the petitioner has already obtained the bail from the competent court of law.
7. Per contra, Ms. Asifa Padroo, learned AAG has vehemently argued that the account cannot be ordered to be de-freezed as the recovery of the amount due to the complainant is yet to be made.
8. Heard and considered the rival contentions of the parties and perused the record meticulously.
9. The section 550 of Criminal Procedure Code is extracted as under:
"Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which creates suspicion of commission of any offence. Such police officer if subordinate to the officer-in-charge of the police station, shall forth with report seizure to that officer."4 Crl R No. 5/2020
10. Thus, the rudimentary requirements to authorise the Police Officer to seize the property are that either the property should be stolen or it should have been found to have any nexus with the offence under investigation by Police. Therefore, the bank account can be frozen only when the money lying in the account is either the stolen money or in any manner is found to be involved in the commission of any offence and then only the said bank account can be frozen. Thus, any subsequent deposit in the bank account from the legitimate source cannot fall with the purview of section 550 Cr.P.C.
11. This is an undisputed fact that the bank account bearing No.0678040100001164 belonging to the petitioner was frozen on 16.07.2019 as is evident from the certificate placed on record by respondent No. 2 and as on the said date, there was total balance of Rs. 11,086/- in the said account. After the account was frozen, it is evident from the record that a sum of Rs. 13,000/- has been credited in the account of the petitioner every month. The fact that the petitioner is a migrant, has not been disputed by the respondents and also the fact that an amount of Rs.13,000/- is being credited into his account every month as migrant relief. The amount that is being credited in the account of the petitioner is not from an unknown source regarding which there can be any objection with regard to it being an amount falling within the definition of stolen property or in any manner involved with the commission of any offence.
12. It will be relevant to take note down the judgment of the Apex Court in case titled "State of Maharashtra v. Tapas D. Neogy", reported in (1999) 7 SCC 685, the relevant paragraph No. 12 of the judgment is reproduced as under:
"12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank 5 Crl R No. 5/2020 account can be held to be "property" within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is "property" within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by the Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub-section (2) of Section 13, the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount or the value of the property 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) of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactorily. The 6 Crl R No. 5/2020 interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, prohibiting the account of the accused from being operated upon. Though we have laid down the law, but so far as the present case is concerned, the order impugned has already been given effect to and the accused has been operating his account, and so, we do not interfere with the same."
(Emphasis supplied)
13. The spirit of the Tapas D. Neoji (supra) is that the sole purpose of the seizure of the bank account of the accused is that if the account is not seized, then the entire money deposited in a bank that subsequently can be held to be in involved in the commission of offence, could be withdrawn by the accused and the court would be powerless to get the said money which has any direct link with the commission of the offence by the accused.
14. The learned Magistrate has not considered this vital aspect of the case that the amount from the Relief Commissioner was being credited every month in the account of the petitioner that was frozen and the petitioner could not have been stopped from withdrawing the said amount to meet his necessities of life.
15. For all what has been discussed above, this petition is partially allowed. Order dated 12.06.2020 refusing to defreeze the account No. 0678040100001164 in the J&K Bank Branch Office, Mansar is modified to the extent that the petitioner shall be allowed to withdraw the amount that has been or 7 Crl R No. 5/2020 is being credited into the account as monthly migrant relief from the Government and the amount lying in the account of the petitioner as on 16.07.2019 i.e. the date on which the account was frozen shall continue to remain frozen. The investigation is still continuing, therefore once the investigation is complete and final report is submitted before the concerned court, the petitioner shall be at liberty to apply afresh for de-freezing the bank account. It is made clear that the petitioner is allowed to withdraw only the amount that is being credited as monthly migrant relief and any other amount if credited into the account of the petitioner, shall not be permitted to withdrawn.
16. Disposed of accordingly.
(RAJNESH OSWAL) JUDGE JAMMU 27.10.2020 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes RAKESH KUMAR 2020.10.27 12:01 I attest to the accuracy and integrity of this document