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.

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.