1. This common order shall dispose of the aforesaid two petition

which arise from a common order passed by the learned Metropolitan Magistrate, New Delhi on 27.09.2007 whereby the Magistrate concerned refused to recall the order of summoning passed in this case against both the petitioners on the basis of an application moved by them to drop the proceedings under Section 258 of the Code of Criminal Procedure (Cr.P.C.)

2. The brief matrix of filing of the present petitions are :

i) A complaint was filed by Sh. K.M. Anees-ul-Haq, against Sh. Shekhar Gupta, petitioner in Crl.Rev.P.637/2007 and Commi Kapoor, Editor (Delhi) of the Indian Express Daily, Sh. Vivek Goenka, Managing Editor (Petitioner in Crl.M.C.4037/2005), Sh. G.R. Saxena under Sections 500/501 of IPC. All the accused persons including the present petitioners were summoned to face trial in the aforesaid complaint by learned Metropolitan Magistrate concerned.

ii) The petitioners moved an application before the MM concerned to drop the proceedings against them at the stage of deciding the question of framing of notice under Section 251 Cr.P.C. The application was moved by the accused persons on the ground that neither Sh. Shekhar Gupta nor Sh. Vivek Goenka were required to be proceeded further in the aforesaid complaint as there was no specific allegations against them about making any defamatory allegations against the petitioner intentionally or with knowledge and therefore merely because they are named or shown in the publication on account of requirement of Section 7 of the Press and Registration of Books Act, 1867 (hereinafter referred to as „the said Act?) as Editor-in-Chief and Managing Director they ought not to be proceeded further in the complaint filed by the complainant.

iii) On 27.09.2007 the learned MM dismissed the application by holding that in view of the judgment of the Apex Court delivered in Adalat Prasad?s case……….. 2004 (7) SCC 338 it was not within his jurisdiction to drop the proceedings as prayed for under Section 258 Cr.P.C. it was held that the judgment delivered in the case of K.M. Mathew Vs. State of Kerala and Ors. AIR 1992 SC 2006 are no more a good law in view of the later pronouncements in Adalat Prasad?s Case.

3. Consequently, the present petitions have been filed for consideration of this Court.

4. Arguments have been heard in respect of both the petitions.

5. Except for the counsel appearing for the petitioners and the State, no arguments have been addressed on behalf of the complainant, Sh. K.M. Anees-ul-Haq, neither a reply has been filed by him.

6. The petitions filed by the petitioners raise the following questions which require determination by this Court:- i) Whether learned MM becomes functous officio after issuing summons in a complaint case and is not required to hear the accused persons at the time of issuing notices to them under Section 251 Cr.P.C. once they cause appearance before the MM in view of the judgment by the Apex Court in Adalat Prasad?s case.

ii) Whether the name of the petitioners should be dropped from the array of the accused persons in the complaint filed by the complainant where no averment has been made by him except identifying the petitioners Sh. Shekhar Gupta as Editor-in-Chief and Sh. Vivek Goenka as the Managing Editor without specifying any role played by them in publishing the alleged defamatory news item despite of the fact that the Editor Sh. Commi Kapoor, whose name also appears in the news item as is required to be published under Section 7 of the said Act.

7. Insofar as the first question is concerned the judgment of the Apex Court being binding on this Court also it cannot be said that the view taken by the learned MM is illegal. As such the first question is decided against the petitioner.

8. As far as the 2nd issue is concerned, I may observe that in the entire complaint filed by the complainant there is no averment regarding personal responsibility of the petit