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1. By means of present criminal misc. petition, the petitioner seeks quashing of impugned orders dated 29.9.2014 passed by Additional Sessions Judge, Court No. 12 Bulandshahar in Criminal Revision No. 53 of 2013 (Prem Kishore vs. State of U.P. and others) and 4.2.2013 passed by Sub Divisional Magistrate, Sikandrabad, Bulandshahar in Case No. 01 of 2013 (State vs. Vipul Chaudhari and another [1st party] and Raj Kishor and nine others [2nd party] ) under section 145 and 146 Cr.P.C., P.S. Sikandrabad, District Bulandshahar.

11. Per contra, learned counsel for the respondent Nos. 4 and 5 contended that there was all possibility of breach of peace and for this reason the order of attachment passed by Sub-Divisional Magistrate is in process to ensure maintenance of peace and good at law.

12. The argument advanced by the learned counsel for the petitioner that the proceedings under Section 145 and 146 Cr.P.C. are not maintainable as civil suit is pending has no substance as admittedly no interim order has been passed in suit by Civil Court. In case of Smt. Binda Devi vs. State of U.P. 2014 (84) ACC 528 (Alld.) Lucknow Bench of this Court relying upon the law laid down by the Hon'ble Apex court in the case of Ram Sumer Mahant Puri vs. State of U.P. And others 1985 (22) ACC 45 (SC) and Sajjan Mukar vs. C.B.I. 2010 (71) ACC 611 (SC) has held that "civil suit cannot operate as a bar against the jurisdiction of Executive Magistrate under Section 145 and 146(1) Cr.P.C. for performing his function for preventing breach of peace."

13. Now the point for determination is propriety of impugned order passed by Sub-Divisional Magistrate. The Hon'ble Supreme Court in the case of Ashok Kumar vs. State of Uttrakhand 2013 (80) ACC 599 (SC) has held as under :

12. "The above order would indicate that the SDM has, in our view, wrongly invoked the powers under Section 146(1),Cr.P.C. Under Section 146(1), a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and Section 146 cannot be separated from Section 145,Cr.P.C. It can only be read in the context of Section 145, Cr.P.C. If after the enquiry under Section 145 of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under Section 145(1) or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.

17. In view of above discussion, the impugned order passed by the Sub-Divisional Magistrate is non-speaking, unreasonable and arbitrary in nature and deserves to be quashed and in consequence the order passed by Sessions Judge in Criminal Revision No. 53 of 2013 is also liable to be quashed.

18. Accordingly, the writ petition is allowed. The orders dated 29.9.2014 passed by Additional Sessions Judge, Court No. 12 Bulandshahar in Criminal Revision No. 53 of 2013 (Prem Kishore vs. State of U.P. and others) and 4.2.2013 passed by Sub Divisional Magistrate, Sikandrabad, Bulandshahar in Case No. 01 of 2013 (State vs. Vipul Chaudhari and another [1st party] and Raj Kishor and nine others [2nd party]) under section 145 and 146 Cr.P.C., P.S. Sikandrabad, District Bulandshahar are quashed and in the given facts and circumstances, the Sub-Divisional Magistrate is directed to decide the partition case no. 57 of 2009 after giving opportunity of hearing to both the parties preferably within a period of three months from the date of production of certified copy of this order.