((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.640 OF 2009 Santosh Purushottam Pathak Applicant versus State of Maharashtra Respondent Kishor Marel i/by M/s.Law Global for applicant. S.S.Pednekar, APP for the State. CORAM : A.S.OKA, J. DATE : 17th April 2009 PC : 1. Heard learned counsel for the petitioner and learned APP for the State. The learned APP appearing for the State on instructions of the concerned officer has confirmed that as on the date of passing of the impugned order and even today the petitioner is in custody in connection with CR No.732 of 2008 registered with Kotwali Police Station, Mathura (Uttar Pradesh). As the petitioner was in custody in connection with the said offence, he could not remain present on 06th November 2008. On that day, non bailable warrant was issued by the Trial Court against the petitioner. ((-2-)) 2. On 12th February 2009, the advocate appearing for the petitioner made an application before the learned Magistrate pointing out that the petitioner could not remain present on 06th November 2008 as he was in custody at Mathura in connection with the aforesaid offence. Without noticing the said factual averment in the application, by the impugned order dated 12th February 2009, the learned Metropolitan Magistrate rejected the application for cancellation of the warrant on the ground that the petitioner was not present. 3. Infact, prior to 06th November 2008 the concerned jail authorities ought to have been called upon to produce the petitioner before the learned Magistrate on 6th November 2008. However, that was not done. Without noticing all these aspects, the learned Judge has rejected the application made by the petitioner. The said application deserves to be allowed. The presence of the petitioner will have to be secured by issuing necessary production warrant. 4. Hence, I pass following order :- ((-3-)) (a) In view of the reasons recorded above, the impugned order dated 12th February 2009 is quashed and set aside; (b) The non bailable warrant issued against the petitioner on 06th November 2008 stands cancelled; (c) Petition disposed of accordingly in the above terms. (A.S.OKA, J.)