IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.350 of 2011 Shambhu Prasad Santhalia, son of Late Devi Prasad Santhalia, resident of village-Kahalgaon (Colgang), Nadia Tola, Ward No.10, P.O. and P.S.-Kahalgaon, District-Bhagalpur. ……..PETITIONER. Versus 1. The State Of Bihar. 2. The Superintendent of Police, Bhagalpur. 3. The Officer-in-charge of Kahalgaon Police Station, District-Bhagalpur. 4. Sri Gauri Prasad Santhalia, son of Late Devi Prasad Santhalia, resident of village- Nadia Tola, Ward No.10, P.O. and P.S.-Kahalgaon, District-Bhagalpur. ……..RESPONDENTS. ---------------------------------- 8 13.12.2011 Heard learned counsel for the petitioner, learned counsel for the O.P. No.4 as well as learned counsel for the State. Petitioner has drawn up instant petition with a prayer to quash Kahalgaon P.S. Case No.149 of 2010 registered under Sections 468, 467, 471, 420, 406, 34 of the I.P.C. Simple submission on behalf of the petitioner is that he along with informant of Kahalgaon P.S. Case No.149 of 2010 are full brother. Ancestral property was left by their deceased father. Later on both the parties got the land partitioned amongst themselves and in token thereof deed of memorandum of partition was prepared (Anenxure-3). It has also been submitted that total area left by their deceased father happens to be 8.82 acre out of which only 1.71 acre has been sold way by him. If the informant has any grievance over Annexure-3 or even in worst case accepting for the 2 argument sake that the family /lands are joint even in that State of affairs, a coparcener is entitled to sale and the area will be finally adjusted towards allotment of share on partition. Therefore, in any view of the matter, petitioner had not gone out of expected share what he would get after partition. Also submitted that no specific allegation, averments have been made in the written report with regard to the act, omission and commission alleged to have been committed at the hands of petitioner save and except incorporating the fact that on the basis of forged signature over memorandum of partition, petitioner is engaged in selling the land. For that it has been submitted on behalf of the petitioner that informant had himself filed Partition Suit No.367/2010 for partition of the property wherein the alleged memorandum of partition is also subject matter of dispute and unless and until its genuineness is verified and explained by the competent civil court, it should not be allowed to be the subject matter of instant prosecution and for that also referred 1987 (supplementary) SCC 146. So submitted that neither on factual aspect nor on legal aspect continuance of Kahalgaon P.S. Case No.149 of 2010 is justified. As such same is fit to be quashed. At the other hand, the learned counsel for O.P. No.4 submitted that on the basis of alleged forged deed of memorandum, petitioner indulged illegally in selling the land 3 to different persons in absence of O.P., delivered its possession where upon purchasers have constructed their house axing upon interest of O.P. Then submitted that whether memorandum of partition which has been taken a ground for selling the land by the petitioner, does contain signature of O.P. or it happens to be a forged one is the matter which is under investigation in this case while the Civil Suit is with regard to partition of the property wherein the above referred memorandum of partition is not under controversy, nay it has been brought under challenge on their behalf. As such, pendency of partition suit is not going to affect upon the prospect of criminal proceeding. At the other hand the learned AC to GP-18 submitted that the investigation is at its preliminary stage and so, it cannot be quashed. So far pendency of criminal as well as civil proceeding is concerned, there happens to be conflicted verdict. At one occasion the Hon’ble Apex Court held that it should not continue while at other, the same has been found maintainable. But the crux happens to be, it all depend upon facts of the case. Whether in the aforesaid background the criminal prosecution should be quashed or not. After going through the averments made in the First Information Report of Kahalgaon P.S. Case No.149 of 2010, it is evident that the 4 forgery having been alleged to the extent of having forged signature of informant over memorandum of partition. However, the same higgle under Partition Suit No.367 of 2010. More particularly at para no.10 wherein it has been incorporated that “defendant no.1 had prepared a fraudulent deed of Batwaranama dated 08.07.1994. The complainant having not sign that deed of Batwaranama dated 08.07.1994. The deed was prepared in his absence”. The aforesaid theme was certainly to be brought up as the partition suit was filed after institution of the instant case. Therefore, it cannot be dragged under civil suit for the same purpose for which criminal case has been instituted. The coverage of criminal prosecution is only to the extent of ascertaining identity of signature to be of information or not, which could be verified after getting the signature properly examined by hand writing expert and therefore, is a matter of investigation. This Court cannot exercise its jurisdiction to act as an investigating authority. The aforesaid scope has been examined by the Hon’ble Apex Court as reported in 2010 (7) SCC page 667 wherein at para-19 it has been held “the High Court should normally refrain from giving a prama facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen 5 in their true prospective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage”. The decision so cited on behalf of petitioner as reported in 1987 (supplementary) SCC 146 is no way going to help the petitioner because of the fact that in a probate case, the crux happens to be with regard to declaration of genuineness of the will and the subsequent finding is based thereupon and unless and until the aforesaid finding comes, no other court is competent to give its verdict. At the other hand so far present controversy is concerned, criminal case was filed much before institution of partition suit. Furthermore, the genuineness of document is not a core issue. Therefore, taking into account the stage of the investigation, I do not see merit in the submission advanced on behalf of the petitioner. Consequent thereupon, petition is rejected. PN (Aditya Kumar Trivedi, J.)