AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2012 (3) TMI 739
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..../ accused No. 11. 4. Learned counsel has submitted that respondent No.2 in para No.11 of the complaint does not contain any allegation against the petitioner and same reads as under:- "11. That the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zomei Time, Shyni Blog, Blogspot, Exbii.com, IMC India. These accused persons knowingly well these facts that these contents and materials are most dangerous for the community and peace of the harmony, but with common and malafide intention and hands under glove with each other failed to remove the same for the wrongful gain." 5. Learned Senior counsel has further drawn the attention of this Court to the impugned order wherein it is observed that the complainant has alleged that the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zombi Time, Shyni Blog, Blogsopt, Exbii.com, IMC India. It is further alleged that the accused persons knowingly, allowed these contents and material to be hosted in the websites which is dangerous to communal harmony with common and malafide intentions and have failed to remove the objectionable content for their wro....
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....er in para No.7 of the complaint filed before learned Trial Court, which reads as under:- "7. That such content, if allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiment of general public following different religions. Following are the websites which host the said objectionable content as provided to the Hon'ble Court in a sealed envelope:- 1. Facebook, 2. Youtube, 3. Google, 4. Yahoo, 5. Orkut, 6. Broadreader, 7. Mylot, 8. Zombie Time, 9. Shyni Blog, 10. Blogsopt 11. Exbii.com, 12. IMC India" 11. Mr. Naveen Sharma, ld. APP appearing for State / R-1, has submitted that in para No.7 of the complaint, as mentioned above, there are allegations against the petitioner, however, has fairly conceded that the contents of the same have not been proved / exhibited by any of witnesses, appeared in the witness box at the time of pre-summoning evidence. 12. He further submitted that at the time of summoning of respondent, learned Trial Court has to see only prima facie case against the petitioner and....
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....er has done which law has been violatied and what kind of act or omission he has committed thereto. In the absence of aforesaid averments or evidence, the summoning order against the petitioner could not have been issued against the petitioner. 18. The settled law is that at the time of summoning, the magistrate should not be casual while issuing the summoning order because it led to the complete trial for the person; therefore, before issuing the summons, concerned magistrate has to apply its mind while going through the complaint and evidence adduced on record. 19. Learned counsel has relied upon State of Haryana & Ors v. Bhajan Lal & Ors 1992 Supp(1) SCC 335 wherein the Apex Court has formulated seven points on the subject, which are as under:- "(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by ....
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.... class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 200. Examination of Complainant:- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 204. Issue of process:- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding,....
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....es not prove anything against the petitioner. No averments for the act or omission of the petitioner are made in the complaint nor has been brought by the testimony of 4 witnesses examined on oath on behalf of the complainant. 26. There is no iota of evidence has been deposed qua the petitioner. Nor proved even by the complainant when he was examined as PW1. There should have been specific averments about the nature of act or omission and law violated and in the absence of the same, summons issued against the petitioner are not sustainable in law. 27. There is no provision in Cr. P.C. to amend the complaint or produce the documents after issuing the summons. 28. Law is settled in case of Pepsi Foods Ltd. & Ors. v. Special Judicial Magistrate and Others AIR 1998 SC 128 wherein it is held that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and ....