SAMSUDDIN DADABHAI JAKHRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. Umesh Trivedi appearing with learned advocate Mr. Jay Thakkar for the petitioners and learned APP Mr. K. L Pandya for respondent - State. Perused the record.

(2.) Petitioners herein are accused Nos.2, 3 and 4 before the learned Additional Sessions Judge of Una in Sessions Case No.3 of 2013 and 5 of 2013. They were also petitioners in main Criminal Revision Application No.604 of 2016. Such revision petition was allowed by oral judgment dated 08.09.2016, whereby order dated 19.06.2016 below Exh. 151, an application under Section 91 of the Code of Criminal Procedure, calling upon certain documents from the investigating agency has been quashed and set aside. Thereby it is clear that when the Sessions Court has rejected such application to call upon certain documents from the investigating officer, this Court has while quashing such order of rejection allowed such application at Exh. 151, directing the investigating agency to produce all documents as prayed for in such application at Exh. 151 on record of the Court, making it clear that while producing such documents before the Court, the investigating agency would require to provide its copies to the accused being petitioners herein. This Court has also made it very much clear in such judgment dated 08.09.2016, in main revision petition, that such production should not be treated as proof or evidence of contents of documents but such documents shall have to be proved by the petitioners - accused in accordance with law. Thereby, production of such documents would be treated as production of documents only, as defence by the accused.

(3.) It seems that probably investigating agency has failed to execute such order in its true perspective, though such order is not challenged before the appropriate forum i.e. the Honourable Supreme Court in such cases. Thereby, it becomes obligatory i.e. compulsory for the investigating agency to produce all such documents before the Sessions Court as asked for by the accused. The record shows that, even till such issue is raised even before this Court, there was no denial by the opponent that some of such documents are not available or not in existence and, therefore, they could not produce the same. The main contentions by the State, both before the lower Court and before this Court is only to the effect that accused has no right to ask for such documents and Court has no power to pass such order, more particularly, when such documents are regarding defence of alibi by the original accused and when the investigating agency has found that such evidence of alibi is not proper to the extend benefit of doubt to the accused. Based upon such premise investigating agency has after completing investigation filed a charge sheet against accused without disclosing the material gathered and collected by it from various witnesses which may otherwise goes to prove that accused