JUDGMENT : M. P. Varma, J. - This is a petition for quashing of a proceeding initiated against this petitioner by an ORDER :dated 22.9.1976 by which the Sub-divisional Judicial Magistrate has taken cognizance of the offence under section 225 and 353 of the Indian Penal Code (hereinafter to be referred to as 'the Code'). 2. There was a criminal case pending in the court of the said Magistrate in which this petitioner was one of the witnesses to be examined, but on account of his non-appearance the court directed for issuance of warrant of arrest against him. The hearing of the case was adjourned to several dates but on 22.9.1976 the Bench clerk of the court of the learned Magistrate asked the constable present on duty to apprehend this petitioner who was found moving about in the court compound and to produce him in court for recording his evidence. The Bench clerk had directed the constable presumably, under the impression that ORDER :for issue of warrant of arrest was already there on the record which was passed earlier by the presiding officer of the court. On being commanded by the Bench clerk, the constable named Md. Isa who was on duty apprehended this petitioner and while he was taking him to court room, he any how, managed to escape, whereupon, the said constable Md. Isa filed a petition of complaint before the learned Sub-divisional Judicial Magistrate alleging therein that this petitioner offered obstruction to the constable in lawful discharge of his duty and made good his escape from the lawful custody. The learned Magistrate recorded the statement of the constable on solemn affirmation and took cognizance of the offence against this petitioner as aforesaid under Section 225 and 253 (sic) of the Code and issued processes for his appearance to take trial. This ORDER :of the learned Magistrate has been challenged in this Court on various grounds. 3. At the very out-set learned counsel for he petitioner has pointed out that the Presiding Officer of the court had passed ORDER :s to issue warrant of arrest, which, in fact, was never issued. It has been submitted that this petitioner even after 8.7.1974 i.e. even after the ORDER :for issue of warrant of arrest was passed, had appeared in court on several dates but his evidence was not recorded and the hearing was postponed on some grounds or the other. It has been submitted that this petitioner even after 8.7.1974 i.e. even after the ORDER :for issue of warrant of arrest was passed, had appeared in court on several dates but his evidence was not recorded and the hearing was postponed on some grounds or the other. The aforesaid incident took place on 22.5.1976 when it is alleged that this petitioner was found moving about in the court compound. It has been urged that since the petitioner had appeared on some of the dates after passing of the aforesaid ORDER :for issue of warrant of arrest, it must be held that for all purposes the said ORDER :had become infructuous or ineffective in view of the appearance of this petitioner in court on several dates thereafter. In other words it has been argued that the warrant was to get this petitioner in court and once he appeared in court in pursuance thereof it must be said that the purpose for which the ORDER :was passed was satisfied or that the ORDER :was substantially complied with. The ORDER :, therefore, must be deemed to have been executed, and was no more in force on the date when the constable proceeded to take him into custody. 4. It was next submitted that in fact there was no warrant of arrest handed over to the constable and this constable was on wrong in taking this petitioner into custody and, therefore, it cannot be stated that the petitioner ran away from any lawful custody or prevented or detained the constable in the discharge of his legal duty in the court compound. Counsel for the State has fairly conceded that though there is an ORDER :on the record to show that the Magistrate directed for issuance of warrant of arrest on 8.7.1974 for appearance of this petitioner and some other witnesses but in fact no such warrant was ever issued in compliance of Section 70 of the Code of Criminal Procedure, speaks that every warrant of arrest issued by a court under the Code shall be in writing signed by the Presiding Officer of such Court and shall bear the seal of the court. So, section 70 provides the form of the warrant of arrest in which it is required to be issued. So, section 70 provides the form of the warrant of arrest in which it is required to be issued. Section 71 of the Code of Criminal Procedure prescribes that a warrant issued may be made over to a Police Officer for its execution. In the instant case it is now admitted position that no such warrant was ever issued in pursuance of the ORDER :, dated 8.7.1974. I have been taken through the petition of complaint filed by the constable Md. Isa. He has not stated anywhere in the petition that he was carrying warrant of arrest issued by a competent authority nor did he say that any such ORDER :or direction was given to him by the Presiding Officer of the court. He has stated that he was asked by the Bench Clerk of the court to apprehend this petitioner. Needless to mention here that the Bench Clerk of the Court does not carry any authority and he was not a competent person to issue any such ORDER :. In this circumstance, the conduct of the constable in putting this petitioner under arrest or taking him into custody cannot be a lawful act rather the arrest in such a circumstance must be deemed to be illegal and unjustified. The petitioner as such does not commit any offence in running from such unauthorised custody or detention and no offence as such under Section 225 of the Code is made out. The offence under Section 353 of the Code is more or less technical in nature. In the petition of complaint there is no averment in what manner the petitioner offered resistance or detained the public servant in the lawful discharge of duty which, the constable was performing in the court compound. Admittedly any resistance offered by this petitioner when he was to be apprehended by the constable, will not amount to causing obstruction to the constable as it was wrong on the part of the constable to effect arrest of this petitioner in pursuance of a verbal communication made over to him by the Bench clerk of the court. Admittedly any resistance offered by this petitioner when he was to be apprehended by the constable, will not amount to causing obstruction to the constable as it was wrong on the part of the constable to effect arrest of this petitioner in pursuance of a verbal communication made over to him by the Bench clerk of the court. There appears to be grave error on the part of the learned Magistrate in ignoring the provisions of law with respect to issuance of warrant of arrest and has committed error in the present case in taking cognizance of the offence and issuing processes against this petitioner on the allegations made out in the petition of complaint. 5. In the circumstances referred to above, since the application succeeds on this ground alone, I do not consider it necessary to deliberate on the point whether the ORDER :for issuance of warrant of arrest had at all become ineffective or infructuous in the present case. It appears that the Magistrate probably failed to exercise control over the proceeding, which had given cause to this episode. 6. In the result, the application succeeds and the impugned ORDER :is hereby set aside.