The main legal point established in the judgment is the requirement for specific averments and evidence against the accused before issuing summoning orders, and the importance of the magistrate's careful scrutiny of evidence before summoning the accused.

Suresh Kait, J.

1. Vide the instant petition, the petitioner has assailed the impugned order dated 23.12.2004 passed by learned Metropolitan Magistrate, whereby the petitioner has been summoned.

2. Mr.Arvind Nigam, learned Senior Advocate appearing on behalf of petitioner submits that the order dated 23.12.2011 passed by learned Metropolitan Magistrate, New Delhi is without application of mind because of the fact that neither averments were made against the petitioner in the complaint nor any evidence produced against him.

3. Learned counsel has drawn the attention of this Court to the complaint being filed by respondent No.2 vide complaint case No.136/11 wherein the petitioner has been impleaded as respondent/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 wrongful gain.

6. Learned Senior Advocate further referred to the deposition of complainant as CW1 made before learned Trial Court, who produced documents Ex.CW1/A-1 to Ex.CW1/A-16 which have been down loaded from website namely www.Zombietime.com. He further deposed that Ex.CW1/A-17 has been down loaded from Orkut which is arrayed as accused Nos.4 & 10. He also proved on record that Ex.CW1/A-18 downloaded from website mylot.com which is per se defamatory to all politicians. It is further deposed that Ex.CW1/A-19 to Ex.CW1/A-22 were downloaded from the post of topix.com as the contents are dangerous for social structure and community. He further deposed that Ex.CW1/A-23 to Ex.CW1/A-36 which are posted by the service provider youtube.com without any sensor or prohibitory or disclaimer which is also dangerous for communal harmony and peace. It is further deposed that Ex.CW1/A-37 to Ex. CW1/A-48 are taken from website Facebook, and has also proved on record that Ex.CW1/A-49 to Ex.CW1/A-52 as provided by the blogspot.com which is arrayed as accused No.6 & 9 in the complaint and these documents are obscene and against the culture of this country.

7. Respondent No.2/complainant has also deposed that document Ex.CW1/A-53 has been taken from the website exbii.com which provides service through google.com and the document Ex.CW1/A/54 has been taken from the website indimedia.org and has been shown as an article posted by imcindia.com, which is against Hinduism and defamatory to the religion. He further deposed that Ex.CW1/A-55 provided by broadreader.com which is defamatory to Indian politicians and document Ex.CW1/A-56 and Ex.CW1/A-57 have been taken from the service provider blogsopt.com which have been provided by the websites.

8. Learned counsel for petitioner submits that firstly there is no averment against the petitioner in the complaint; and secondly, there is on evidence adduced on record by the complainant or other witnesses, which is relatable to the petitioner.

9. He further submitted that petitioner is not a social networking site and he is only email provider,