Gauhati High Court
Hemanta Hazarika vs The State Of Assam on 27 June, 2024
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GAHC010111482024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1448/2024
HEMANTA HAZARIKA
S/O PULIN HAZARIKA, R/O HOUSE NO. 84, SIX MILE CHACHAL, VIP ROAD,
BY LANE NO-2, P.S.-DISPUR, P.O.-KHANAPARA, GUWAHATI, DIST-KAMRUP
(M), ASSAM-781022
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. B D KONWAR SR. ADV.
Advocate for the Respondent : PP, ASSAM
Linked Case : I.A.(Crl.)/591/2024
APARNA DEKA
D/O MANOJ DEKA
R/O HOUSE NO. 10
CHANDRANGIRI PATH
P.S. DISPUR
PIN 781036
DISTRICT KAMRUP METRO
ASSAM
Page No.# 2/6
VERSUS
HEMANTA HAZARIKA
S/O PULIN HAZARIKA
R/O HOUSE NO. 84
SIX MILE CHACHAL
VIP ROAD
BY LANE NO-2
P.S.-DISPUR
P.O.-KHANAPARA
GUWAHATI
DIST-KAMRUP (M)
ASSAM-781022
------------
Advocate for : MR VIKRAM ADITYA CHOWDHURY Advocate for : MR H AGARWAL appearing for HEMANTA HAZARIKA BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND 27.06.2024 Heard Mr. B.D. Konwar, learned Senior Counsel for the petitioner Hemanta Hazarika, who has filed this application under Section 438 of the Code of Criminal Procedure, 1973 (CrPC for short) with prayer for pre-arrest bail as he is apprehending arrest in connection with Dispur Police Station Case No. 517/2024 under Sections 120(B)/403/420/406/409/477A of the Indian Penal Code, 1860 (IPC for short).
2. Also heard Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the respondent State and Mr. A.M. Bora, learned Senior Counsel for the applicant who is the informant of this case.
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3. The FIR unfolds that the Hitachi Cash Management Services Pvt. Ltd. (HCMSPL for short) is a cash replenishment agency offering services of cash replenishment to bank ATMs. Along with cash replenishment, other services like cash transportation, cash management, ATM servicing etc. are also provided. It is alleged that in respect of the said services, the reconciliation team received debits for Rs.1,94,98,200/- (Rupees One Crore Ninety Four Lacs Ninety Eight Thousand and Two Hundred) from MSP regarding customer claims of multiple ATMs allocated to the custodians/ATM operators, who are handling the ATM's of MSP.
4. An investigation was conducted when such huge transaction had surfaced and it was unearthed that the aforementioned amount of money was misappropriated by the custodians. It is averred that as per the process, the ATM operators load money in the ATMs as per the Managed Service Provider (MSP) indent. After loading cash in the ATMs, the operators have to submit EOD reports of that particular day with all the supporting feedback relating to overage/shortage found during that particular day on a real-time basis as the operators are responsible for the management of the ATMs. It is contended that the ATM operators did not declare the overage amount and did not deposit the same to the company thereby committing misappropriation of funds. After a comprehensive audit, involvement of all various ATM operators and the Branch Manager, Mr. Ajay Kumar Viswawkarma was unearthed. The name of the Branch Manager including the name of 54 (Fifty Four) such ATM operators has been mentioned in the FIR. The petitioner is one of the ATM operators.
5. It is submitted that in an omnibus manner, all these ATM operators have been roped in connection with this incident. The subject of the FIR clearly reveals that the Branch Manager is responsible for siphoning of the funds in a Page No.# 4/6 surreptitious manner. It is also submitted on behalf of the petitioner that the Branch Manager has already been arrested in connection with this case.
6. The learned Additional Public Prosecutor has raised serious objection stating that there are incriminating materials in the Case Diary against the petitioner. The learned Additional Public Prosecutor has submitted that the present petitioner along with the co-accused named in the FIR, have siphoned off public money and the Branch Manager, Mr. Ajay Kumar Biswakarma is complicit as he tried to cover up their misdeeds. The Branch Manager has already been arrested. It is further submitted by the learned Additional Public Prosecutor that notices were issued to several incumbents who are allegedly holding the post of custodian like the present petitioner. They have cooperated with the investigation. They have appeared before the Investigating Officer. This petitioner is evading to appear before the Investigating Officer. It is further submitted that investigation may be adversely affected if the petitioner is admitted to bail. This is a case of serious nature where huge amount of public money has been retained by the petitioner in a clandestine manner.
7. The learned counsel on behalf of the applicant Aparna Deka has relied on the decision of the Hon'ble Supreme Court in Jagjeet Singh and Others Vs. Ashish Mishra alias Monu reported in (2022) 9 SCC 321 wherein it has been observed that:
"23. A "victim" within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that "victim" and "complainant/informant" are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a "victim", for even a stranger to the act of crime can be an "informant", and similarly, a "victim" need not be the complainant or informant of a felony.
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24. The abovestated enunciations are not to be conflated with certain statutory provisions, such as those present in Special Acts like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where there is a legal obligation to hear the victim at the time of granting bail. Instead, what must be taken note of is that:
24.1. First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged.
24.2. Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses."
8. In reply the learned Senior Counsel for the petitioner has submitted that the ratio of Jagjeet Singh's case (supra) is not applicable to this case. The respondent Ashish Mishra was booked under Sections 147, 148, 149, 302, 307, 326 read with Sections 34 and 120-B of the IPC whereas this case is entirely a different case and the applicant Aparna Deka is not a victim in this case.
9. Learned Senior Counsel for the petitioner Mr. B.D. Konwar has raised serious objection against the submission made on behalf of the applicant.
10. It is submitted on behalf of the applicant/informant Aparna Deka, who is arrayed as respondent No. 2 in the petition that the HCMSL is a cash replenishment agency offering services of cash replenishment to bank ATMs. The standard operating procedure for replenishment of the cash in ATMs is to be strictly followed by all the custodians. However, during the internal audit conducted from 24.05.2024 up-to 29.05.2024, a cash shortage of Rs.4,70,20,700/- (Rupees One Crore Seventy Lacs Twenty Thousand and Seven Hundred) was identified in 76 ATMs. During investigation it was unearthed that the petitioner Biju Das siphoned of more than 41 (Forty One Lacs), Hemanta Page No.# 6/6 Hazarika siphoned off more than 1 Crore 62 Lacs, and Mintu Das siphoned off more than 1 Crore 30 Lacs.
11. Annexures appended along with the application has not been discussed in this case as the learned Senior Counsel for the petitioner has raised serious objection against the interlocutory application submitted on behalf of the informant and has prayed to reserve his right for filing an objection.
12. However, I proceed to dispose of the petition after considering the submissions at the bar with circumspection and after perusal of the Case Diary. Indeed there are incriminating materials in the Case Diary against the petitioner. I have considered the staggering magnitude of the offence and the role attributed to the petitioner. It appears that investigation may indeed be adversely affected if the petitioner is admitted to bail. It appears that enlargement on the petitioner to bail may impede the progress of investigation. Huge amount of public money has allegedly been embezzled by the petitioner. In offences of this nature, the provision under Section 438 of the CrPC cannot be exercised in an untrammeled manner. At this juncture, there appears to be no justified ground to extend the privilege of anticipatory bail to the petitioner. Hence, petition is rejected at this stage.
13. In the above terms, both the Anticipatory Bail and the Interlocutory Application stand disposed of.
14. Send back the Case Diary.
JUDGE Comparing Assistant