JUDGEMENT
Vedepal, J. -
(1.)THIS application under Section 482 Cr.P.C. has been moved by Sanwal Prasad Mishra for quashing/ setting aside order dated 26.2.2009 passed by Special Chief Judicial Magistrate, C.B.I Lucknow in case no. 52 of 2008 C.B.I. Vs. Ram Kishore and others under Sections 120-B,420,468,471 I.P.C. whereby non bailable warrant of arrest and process under Section 82 of the Cr.P.C. were issued against the petitioner. Notice on behalf of the State has been received by learned A.G.A. , while notice on behalf of C.B.I./ S.C.B., Lucknow has been received by Sri Bireshwar Nath Advocate. Heard the learned counsel for the petitioner as well as learned counsel for the opposite parties and perused the record of the case. It reveals from the perusal of the record that case crime no.19 of 2001 under Sections 498-A and 304- B I.P.C. And Dowry Prohibition Act was registered against Raam Kishore and others. The said case pertains to district Gonda. One Sri Rakesh Kumar Dubey Advocate filed an application for fixing amount of surety bonds along with an order purported to have been passed by High Court on 27.8.2004 in Crl.Misc. Case No. 1848(B) of 2002 in the Court of C.J.M. Gonda, whereupon Ram Kishroe got his release . When the complainant Awadhesh Kumar of the said case enquired into the matter from the High Court it revealed that said bail order concerning Ram Kishore accused was false and fabricated document on the basis of which Raam Kishore secured his release with the help and connivance of Om Prakash, Prem Nath, Rakesh Kumar Dubey Advocate and the petitioner etc. On the direction of the High Court C.J.M., Gonda lodged a report of the matter and the case was entrusted to C.B.I. And after completing investigation of the case the C.B.I. submitted charge sheet against the petitioner and others in the Court of Special Chief Judicial Magistrate, C.B.I. Lucknow Feeling aggrieved with the filing of the charge sheet Sanwal Prasad Mishra,who is a clerk to an Advocate in Civil Court, Gonda filed a petition under Section 482 Cr.P.C. in this Court being Crl. Misc. Case No. 2032 of 2008 Sanwal Prasad Mishra Vs. State of U.P. And others. The said petition under Section 482 Cr.P.C. was heard and rejected by this Court and the request for quashing the proceeding was refused on 13.10.2008. THIS Court had also held that the applicant has a right to move the application for discharge under Section 239 of the Cr.P.C. through proper application and in the event such an application is filed within one month from today, the Court shall dispose of the same within two months from the date of its filing and it was also directed that in case the applicant appears before the Court concerned and applies for bail within 30 days from today, his bail application shall be considered and dispose of expeditiously if possible, on the same day by the Court below in accordance with law and no coercive action shall be taken against the petitioner in the said period of thirty days. It appears that the petitioner did not put up his appearance before the Court below within a period of 30 days reckoned from 13th October,2008. Therefore, non bailable warrant of arrest and process under Section 82 of the Cr.P.C. were issued against the petitioner. Feeling aggrieved with this order of issuance of non bailable warrant of arrest and process under Section 82 of Cr.P.C. the petitioner has filed this petition. The learned counsel for the petitioner submitted that in compliance of the order of this Court an application under Section 239 of the Cr.P.C. was moved by before the Chief Judicial Magistrate C.B.I. Lucknow on 17.12.2008 along with an affidavit of Sri Shamsher Bahadur Singh of district Gonda but the said application has not been decided as yet. It was further submitted that the petitioner had also moved an application under Section 311 of the Cr.P.C. on 15.1. 2009 to summon Sri Shamsher Bahadur Singh Advocate for evidence but till date no decision has been taken on this application and the Court below without deciding both these applications issued warrant of arrest and process under Section 82 of the Cr.P.C. against the petitioner which is misuse of the process of the Court and as such petition should be allowed. Learned counsel for the petitioner also relied on Zahira Habibullah H. Sheikh and another Vs. State of Gujrat and others reported in 2004 S.C.C.(Crl.) 999. Shri Bireshwar Nath Advocate, learned counsel for C.B.I. Submitted that the petitioner himself has not complied with the order of this Court passed in Crl.Misc. Case No. 2032 of 2008 Sanwal Prasad Mishra Vs. State of U.P. The petitioner neither surrendered before the Court below nor moved any application for bail within the period allowed by this Court under its order dated 13.10.2008 and the petitioner was never exempted from appearance before the court below forever. In these circumstances, if on the failure of the petitioner to appear before the court below and to move application for bail within the prescribed time, the court below issued process against the petitioner to compel his appearance, there was nothing wrong in it. Therefore, the order of issuance of non bailable warrant and process under Section 82 Cr.P.C. against the petitioner cannot be said to be irregular or illegal. He further submitted that this Court in its order dated 13.10.2008 passed in Crl. Misc. Case No. 2032 of 2008 had specifically directed to move application under Section 239 of the Cr.P.C. within a period of one month from the date of its order dated 13.10.2008 but no application was moved within time. It was further contended that application under Section 311 of the Cr.P.C. at this preliminary stage before framing of charge was moved by the petitioner just to delay the proceeding and accused has got no right to summon any witness at this stage. It was further submitted that the petitioner has not come with clean hands and he himself is misusing the process of the Court by delaying disposal of case and as such he does not deserve any relief. I have carefully considered the respective submissions made by the parties. It reveals from the perusal of the record that a petition under section 482 of the Code of Criminal Procedure being Crl. Misc. Case no.2032 of 2008 : Sanwal Prasad Mishra Vs. State of U.P. and others was filed by the petitioner herein before this court for quashing of summoning order dated 27.2.2008 passed by Special Chief Judicial Magistrate, C.B.I., Lucknow in Case No.32/2005 CBI Vs. Ram Kishore and others under section 120-B, 420, 468, 471 I.P.C. The said prayer for quashing the summoning order was refused by this court under its order dated 13.10.2008 observing that from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant and all the submissions made at the bar relates to the disputed question of fact which cannot be adjudicated upon by this Court under section 482 Cr.P.C. It was further observed by this court in its order dated 13.10.2008 that the disputed defence of accused cannot be considered at this stage and the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and the petitioner is free to take all the submissions in the said discharge application before the trial court. It was further directed by this court under its order dated 13.10.2008 that in the event such an application is filed within one month from today, the trial court is directed to consider and dispose it of within a period of two months from the date of its filing. Admittedly, no application for discharge was moved by the petitioner before the court below within a period of one month from 13.10.2008, the date on which the order was passed by this court. The petitioner in his petition in the list of dates and events, has mentioned that petitioner has moved an application under section 239 Cr.P.C. for discharge before the Special Chief Judicial Magistrate, C.B.I., Lucknow alongwith affidavit of Shemsher Bahadur Singh on 17/18.12.2008. The said application has been filed as Annexure No.6 by the petition but it does not contain any date of its presentation. The place for date is blanked. Even then on the basis of the list of dates and events, this application under Section 239 Cr.P.C. was not moved within the time granted by this court under its order dated 13.10.2008. It further reveals that this court under its order dated 13.10.2008, has directed the court below that in case the applicant appears before the court concerned and apply for bail within thirty days from today, his application shall be considered and disposed of expeditiously, if possible on the same day by the court below in accordance with law and no coercive action shall be taken against the petitioner/applicant for the said period of 30 days. The said period of thirty days had elapsed on 12.11.2008 but even then the applicant neither surrendered nor moved any application for bail within the prescribed time. The order to compel production of petitioner was passed by the court below in the month of February, 2009 which has been challenged by the petitioner in this petition. In the circumstances stated above, the petitioner himself is avoiding the process of law and is not complying with the directions given by this court under order dated 13.10.2008. It further reveals that the petitioner had also moved an application under section 311 Cr.P.C. which is Annexure No.7 to this petition on 15.1.2009. The learned counsel for the petitioner vehemently argued that the trial court ought to have summoned the witness mentioned in the said application before deciding application under Section 239 Cr.P.C. The question whether an accused has right to summon any document or witness at the stage of framing of the charge was considered by Hon'ble Supreme Court in case of State of Orissa Vs. Debendra Nath Padhi : 2005 (1) SCC 568. It was observed by the Hon'ble Supreme Court in the said case that no provision in the Code gives the accused the right to file any material or document or to produce evidence for consideration of the court at the stage of framing of the charge. The right to adduce evidence is only granted to an accused at the stage of the trial. It reveals from the perusal of the ruling of Zahira Habibullah H.Sheikh(supra) that in this case, a prayer for examination of the witnesses under Section 311 Cr.P.C. was made during the appeal which was rejected and in this context, the Hon'ble Supreme Court has laid down that Section 311 Cr.P.C. confer vast and wide power on the presiding officer of the court to elicit all necessary material by playing an active role in the evidence collecting process. The facts of the present case is quite different. In this case, the accused has neither put up his appearance nor charge has not been framed as yet even though the application to summon witness was moved before framing of the charge. No doubt section 311 Cr.P.C. confers very wide power on the court for summoning witness but this discretion of summoning the witness is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. Hon'ble Supreme Court in the case of Debendra Nath (supra) has clearly ruled that at the stage the defence could only be heard but could not be given an opportunity to produce evidence for the consideration of the court. THIS view was again affirmed by the Hon'ble Supreme Court in the case of Rukmini Narvekar Vs. Vijaya Satardekar and others : 2009 AIR SCW 118. Thus, in view of the above circumstances, moving application by the petitioner at pre charge stage for summoning the witnesses is nothing but a move to delay the proceedings. Thus he ruling of Zahira Habibullah H.Sheikh (supra) is not helpful to the petitioner in this case. In view of the above, it is clear that this court under order dated 13.10.2008 passed in Case No.32/2005 : C.B.I. Vs. Ram Kishore and others under Section 120-B, 420, 468, 471 I.P.C. has directed the court not to take coercive action for only 30 days from the date of its order dated 13.10.2008 against the petitioner and that time has expired and the petitioner had neither surrendered before the court below nor moved any bail application. Therefore, if the learned court below issued non bailable warrant of arrest against the petitioner and issued process under Section 82 Cr.P.C., he committed no illegality, irregularity or any mistake and as such the case of misuse of the process of the court is not made out. There exists no sufficient ground to interfere in the impugned order in these proceedings under Section 482 Cr.P.C. The petition deserves dismissal and is accordingly dismissed in limine.