MIRZA YAKUB BAIG Vs. STATE OF ORISSA

JUDGEMENT

(1.) While hearing an application under Section 438 of the Code of Criminal Procedure, 1973 (in short, the 'Code') a learned Judge of this Court felt that there was divergence of view in orders passed by learned single Judges, on the question whether the Court can pass an interim order not to arrest the accused till disposal of the application under Section 438 of the Code. Reference was made to one view expressed in Madan Mohan Sahoo v. State of Orissa, (1995) 9 OCR 553, where it was observed inter alia as follows after referring to cases of State of Haryana v. Bhajan Lal reported in AIR 1992 SC 604 : 1992 Cri LJ 527 and Janata Dal v. M.S.Chowdhary reported in AIR 1993 SC 892 : 1993 Cri LJ 600, held as follows :

(2.) Reliance was placed by the learned counsel for petitioners on a decision of the Apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR 1996 SC 1042 : (1996 Cri LJ 1368) to submit that such orders can be passed. The learned referring Judge observed that there was nothing in the said decision from which it can be inferred that such interim orders can be passed. Therefore, the matter was referred to a Division Bench and that is how the matter has been placed before us.

(3.) It was submitted by the learned counsel for petitioners that there is nothing in Section 438 of the Code which prohibits passing of such interim order. Learned counsel for the State and the informant submitted that the correct position has been indicated in Madan Mohan Sahoo's case (supra).