Short answer. It must be issued right away once warranted. Rule 102, Section 5 requires the court or judge to grant the writ forthwith when a petition is presented and it appears the writ ought to issue, with the clerk immediately issuing it under seal, or, in an emergency, the judge may issue it personally.
What the law says
A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.
Rule 102, Section 5 — When the writ must be granted and issued. Read the full provision →
No discretion to delay once warranted
The rule is mandatory in its wording: a court or judge must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith. There is no room here for simply sitting on a warranted petition. The word "must" leaves no discretion once the two conditions are met — a petition is presented and it appears the writ should issue — so a judge cannot defer the decision for administrative convenience or wait for a more opportune moment on the court calendar.
The normal issuance process
Once granted, immediately thereupon the clerk of the court shall issue the writ under the seal of the court, the standard formal route by which the writ actually goes out. This step is likewise immediate, not merely prompt, reinforcing that the entire chain from petition to issued writ is meant to move without the ordinary delays that might attend other, less urgent court processes.
The emergency alternative
In case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it, bypassing the usual clerk-and-seal process when speed is critical. This alternative exists precisely because waiting even for the clerk's formal issuance could, in a genuine emergency, cost the detainee time that matters — the judge can personally sign and dispatch the writ, and hand the task of serving it to whoever is available.
Why the rule builds in this urgency
Habeas corpus exists to test unlawful restraint quickly. A rule that let a court delay issuing a warranted writ would undercut the very purpose the remedy is designed to serve. Every day a wrongful detention continues is itself the harm the writ is meant to address, so building mandatory, immediate issuance into the rule, rather than leaving timing to a court's discretion, ensures the remedy remains meaningful rather than merely theoretical.
Related provisions
- Rule 102, Section 5 — When the writ must be granted and issued
- Rule 102, Section 4 — When writ not allowed or discharge authorized
- Rule 102, Section 6 — To whom writ directed, and what to require