While dismissing petition Magistrate should ought to have passed speaking order.

Criminal Revision Petition is filed against the orders dated 23.08.2002 made in C.M.P.No.2509 of 2002 in C.C.No.218 of 1993 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai.15.

2. It is the case of the petitioner that on a complaint preferred by the defacto complainant, the respondent herein has registered a case in Crime No.736/1991 for alleged offence under Sections 420, 406 read with 34 I.P.C. against the petitioners and four others. The said case has been posted on 13.08.2002. On the date, the petitioners herein could not appear before the Court as they were employed in the Public Works Department of the Government of Tamil Nadu and were entrusted the work of removal of encroachment. Unfortunately, the abovesaid fact was not brought to the notice of the Trial Court. Hence, the Trial Court ordered Non-Bailable Warrant on that date against the petitioners. On 23.08.2002, the petitioners have filed a petition under Section 70(2) Cr.P.C. to recall the warrant.

3. Mr.K.S.Natarajan, learned Counsel appearing for the petitioners submitted as mentioned below:-

On 23.08.2002, the petitioners' Counsel was not present due to Advocates boycott, but the petitioners were very much present in the said Court. Instead of calling the petitioners' name, the case was called mentioning the name of the counsel and the petition to recall NBW was dismissed immediately as the counsel was absent, however, the next minute, they had made representation to the court and prayed for recalling the warrant based on the application under Sec.70(2) Cr.P.C. The said representation of the petitioners was not considered by the learned Magistrate, ultimately remanded them to judicial custody, knowing well that it was Friday. Later, the petitioners were released on bail on Monday. The learned Counsel submitted that the petitioners are the Executive Engineers in the Public Works Department of the Government Tamil Nadu and consequent to the said imprisonment, the Department allegedly initiated action against the petitioners. The entire amount payable also paid by the petitioners which is admitted in the evidence dated 28-06-2001 of P.W.1. Indeed, the said witness deposed categorically that he did not want to proceed against the petitioners herein.

4. The petitioners were very much available at the time of calling of the cases on 23-08-2002 which is evident from the impugned order passed by the learned Magistrate that "A1, A2, A3, A5, A11 and A14 present with warrant Recall U/sec. 70 (2) Cr.P.C. and the same is dismissed. NBW pending against A6. Other accused present. Remanded A1, A2, A3, A5, A11 and A14 by 06-09-2002".

5. Now, it is necessary to look into provisions of Section 70 of Cr.P.C. and Section 309 of Cr.P.C. which are relevant to this case.

"70. Form of warrant of arrest and duration – (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the Presiding Officer of such Court and shall bear the seal of the Court

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed."

6. Form No.2 of second schedule of Cr.P.C. is model of warrant which is an order addressed to a certain person to arrest the accused and take him into custody and produce him before the court. An arrest being a deprivation of personal liberty it is incumbent of the Magistrate to issue warrant in accordance with law. Magistrate or Court, before which the case is pending has jurisdiction to cancel warrant

U/sec. 70 (2), of course it also empowered to refuse to cancel it.

7. Section 309 of Cr.P.C. runs as follows:-

"309. Power to postpone or adjourn proceedings- (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond