IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.70938 of 2021

Arising Out of PS. Case No.-140 Year-2014 Thana- BETTIAH CITY District- West

Champaran

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Jakir Ali @ Zakir Ali, S/o Late Abdul Gaffar @ Late Gaffar Miyan @ Late

Abdul Gafar R/o Village - Najani Chowk, P.S. - Bettiah (Town), District -

West Champaran.

... ... Petitioner/s

Versus

1.

The State of Bihar

2.

Ashif Ekbal @ Tiblu Mian S/o Md. Mustafa R/o Hospital Road, Bettiah,

P.S.- Bettiah town, District - West Champaran.

... ... Opposite Party/s

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Appearance :

For the Petitioner/s

:

Mr. Bimlesh Kumar Pandey, Advocate

For the Opposite Party/s :

Ms. Anita Kumari, APP

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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA

ORAL ORDER

4

28-07-2022

1.

Heard the parties.

2.

This is an application for quashing of the order

dated 23.07.2021 passed by learned Additional District

and Sessions Judge 4^th, Bettiah, West Champaran in

connection with Bettiah (Town) P.S. Case No. 140 of

2014, whereby and whereunder the informatory petition

bearing Informatory Petition No. 568MK(2013) was

rejected to be read as public document, in view of Section

74 of the Indian Evidence Act, 1872 and by the same

order, the defence evidence was closed.

3.

Learned counsel appearing for the petitioner

submitted that Informatory Petition dated 30.03.2013

Patna High Court CR. MISC. No.70938 of 2021(4) dt.28-07-2022

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bearing Informatory Petition No. 568MK(2013) before

the S.D.M., Bettiah, West Champaran, was given against

the informant of Bettiah (Town) P.S. Case No. 140 of

2014 besides some other persons, apprehending danger to

his life and also apprehending his implication in false

cases, under Section 39 of the Cr.P.C. with a prayer to

consider the same as a public document under Section 74

of the Indian Evidence Act, 1872, as same was kept in

public office of learned Chief Judicial Magistrate. It is

submitted that order dated 23.07.2021 is depriving the

petitioner from most valuable right of defending himself

by not allowing the document to be treated as public

document.

4.

Learned counsel, while arguing over the subject,

refereed a judgment of our own High Court of F.A. No.

203 of 2011, dated 11.07.2018, which shows that

informatory petition, was exhibited before the trial Court,

therefore, it is submitted that same may be accepted and

read as a public document.

5.

Learned counsel appearing on behalf of O.P. No.2,

submitted that merely on the ground as document is being

kept in public office, which has not been created by the

Patna High Court CR. MISC. No.70938 of 2021(4) dt.28-07-2022

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public servant discharging public duty, cannot be said a

public document.

6.

It is important to quote the provision of Section 39

of the Cr.P.C. for the sake of convenience and better

understanding, which is quoted as below:

39. Public to give information of certain offences.—

(1) Every person, aware of the commission of, or of the

intention of any other person to commit, any offence punishable

under any of the following sections of the Indian Penal Code (45 of

1860), namely:—

(i) Sections 121 to 126, both inclusive, and Section 130

(that is to say, offences against the State specified in

Chapter VI of the said Code);

(ii) Sections 143, 144, 145, 147 and 148 (that is to say,

offences against the public tranquillity specified in Chapter

VIII of the said Code);

(iii) Sections 161 to 165-A, both inclusive (that is to say,

offences relating to illegal gratification);

(iv) Sections 272 to 278, both inclusive (that is to say,

offences relating to adulteration of food and drugs, etc.);

(v) Sections 302, 303 and 304 (that is to say, offences

affecting life);

26[(v-a) Section 364-A (that is to say, offence relating to

kidnapping for ransom, etc.);]

(vi) Section 382 (that is to say, offenc