1. Summoning order under Section 202 Cr.P.C. — High Court set aside summoning order — Petition under Section 482 Cr.P.C. challenging rejection of discharge application. (Para 3 , 4 )
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2025 Supreme(SC) 222
SUPREME COURT OF INDIA
Abhay S.Oka, Nongmeikapam Kotiswar Singh, JJ.
Mohd. Asif - Appellant
Versus
State Of Uttar Pradesh & Anr. - Respondents
Criminal Appeal No. 325 of 2025 [@ Special Leave Petition (Criminal) No.9127 of 2019]
Decided On : 22-01-2025
Important Points
The High Court's quashing of a summoning order based on a misinterpretation of Section 202 of the Cr.P.C. was erroneous; the Supreme Court confirmed the summoning order and remanded the discharge application for merit consideration.
Subject
Criminal Law - Procedure
Act Referred
Headnote
(A) Code of Criminal Procedure, 1973 - Section 202 - Summoning order - The High Court set aside the order of summoning dated 21st July, 2017, on the premise that sub-section 2 of Section 202 is mandatory in every case where the offence is triable exclusively by the Court of Sessions - The Supreme Court quashed the High Court's order, confirming the summoning order and remanding the case for consideration of discharge application. (Paras 3, 5, 6)
(B) Appeal - The appeal is partly allowed, restoring the application for discharge to the High Court for consideration on merits. (Paras 6, 10)
Facts of the case:
The accused were summoned on a complaint under Section 202 of the Cr.P.C., and the order was confirmed up to the Supreme Court. The High Court set aside the summoning order, which had attained finality, leading to the appeal.
Findings of Court:
The Supreme Court confirmed the summoning order and remanded the case for the High Court to consider the merits of the discharge application.
Issues: The main issue was whether the High Court correctly set aside the summoning order based on the interpretation of Section 202 of the Cr.P.C.
Ratio Decidendi: The court ruled that the High Court's reasoning for setting aside the summoning order was flawed, and the summoning order stands confirmed.
Result: The appeal is partly allowed.
(B) Appeal - The appeal is partly allowed, restoring the application for discharge to the High Court for consideration on merits. (Paras 6, 10)
Facts of the case:
The accused were summoned on a complaint under Section 202 of the Cr.P.C., and the order was confirmed up to the Supreme Court. The High Court set aside the summoning order, which had attained finality, leading to the appeal.
Findings of Court:
The Supreme Court confirmed the summoning order and remanded the case for the High Court to consider the merits of the discharge application.
Issues: The main issue was whether the High Court correctly set aside the summoning order based on the interpretation of Section 202 of the Cr.P.C.
Ratio Decidendi: The court ruled that the High Court's reasoning for setting aside the summoning order was flawed, and the summoning order stands confirmed.
Result: The appeal is partly allowed.
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Petitioner: Mr. Praveen Chaturvedi, AOR, Mr. Shashindra Tripathi, Adv.
For the Respondent: Ms. Garima Prashad, Sr. A.A.G., Mr. Sudeep Kumar, AOR, Mr. Abhishek Saket, Adv., Ms. Manisha, Adv., Ms. Rupali, Adv., Ms. Ashmita Bisarya, Adv., Mr. Binod Kumar Singh, Adv., Mr. Nirmal Kumar Ambastha, AOR
Advocate Appeared:
For the Petitioner: Mr. Praveen Chaturvedi, AOR, Mr. Shashindra Tripathi, Adv.
For the Respondent: Ms. Garima Prashad, Sr. A.A.G., Mr. Sudeep Kumar, AOR, Mr. Abhishek Saket, Adv., Ms. Manisha, Adv., Ms. Rupali, Adv., Ms. Ashmita Bisarya, Adv., Mr. Binod Kumar Singh, Adv., Mr. Nirmal Kumar Ambastha, AOR
Table of Contents
2. Challenge to the order refusing grant of discharge and the validity of the summoning order under Section 202 Cr.P.C. (Para 4 )
3. High Court erred by setting aside a final summoning order on the wrong premise that Section 202(2) Cr.P.C. is mandatory for sessions-triable offences. (Para 5 )
4. Section 202(2) Cr.P.C. is not mandatory in every case where the offence complained of is triable exclusively by the Court of Sessions. (Para 5 )
5. Impugned order quashed — Summoning order confirmed — Case remanded to High Court to decide the merits of the discharge application. (Para 6 , 7 , 9 , 10 )
6. Is Section 202(2) of the Cr.P.C. mandatory for all offences triable exclusively by the Court of Sessions?
No, the court held that Section 202(2) of the Cr.P.C. is not mandatory in every case where it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions. (Para 5 )
7. Can a High Court set aside a summoning order that has already attained finality?
The court held that setting aside a summoning order that had attained finality based on a wrong legal premise is incorrect and such an order must be quashed. (Para 5 )
8. What is the remedy if a High Court sets aside a summoning order but fails to consider the merits of a discharge application?
In such instances, the case must be remanded to the High Court to specifically consider the merits of the challenge to the order refusing to grant discharge. (Para 5 , 6 )
ORDER :
1. Leave granted.
2. Heard learned counsel appearing for the parties.
3. There is no dispute that the order passed by the learned Magistrate dated 21st July, 2017 by which the accused were summoned on a complaint under Section 202 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’) has been set aside by the High Court by the impugned order. It is an admitted position that order of summoning was questioned by the second respondent which was confirmed upto this Court.
4. The petition under Section 482 Cr.P.C. was filed by the second respondent challenging the order dated 18th September, 2018 by which application for discharge made by him was rejected.
5. By the impugned order, the High Court has set aside the summoning order dated 21st July, 2017 though the said order had attained finality. Moreover, the said order is set aside on a wrong premise that sub-section 2 of Section 202 of Cr.P.C. is mandatory in every case where it appears to the learned Magistrate that the offence complained of is triable exclusively by the Court of Sessions. Therefore, the impugned order insofar as it set asides the order of summoning will have to be quashed and set aside. However, the High Court has not considered the merits of the challenge to the order refusing to grant discharge and to that extent, the case will have to be remanded to the High Court.
6. Hence, we pass the following order:
(i) The impugned order dated 9th April, 2019, is hereby quashed and set aside and Criminal Application No.12887 of 2019 is restored to the file of the High Court of Judicature at Allahabad;
(ii) We, however, clarify that the summoning order dated 21st July, 2017 order stands confirmed. The High Court will confine itself to the merits of the prayer made by the second respondent for grant of discharge;
(iii) The restored application shall be listed before the Roster Bench of the High Court on 25th February, 2025 in the morning. The parties who are present today shall appear before the High Court on that day and no further notice shall be issued by the High Court.
7. Considering the fact that the complaint is of the year 2014, the High Court will fix appropriate date for hearing of the restored application.
8. The Registry to forward a copy of this order to Registrar (Judicial) of the High Court.
9. All questions regarding prayer for discharge are left open to be decided by the High Court.
10. The appeal is partly allowed on above terms.
11. Pending application(s), if any, shall stand disposed of.
