Judgment

Rajnesh Oswal, J.—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 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.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