Judgment :- 1. These Criminal Revision Petitions arise out of three prosecutions started by the respondent, who is an advocate practising at Kottayam, against the editors and printers and publishers of three newspapers for defamation under S.500 and 501 of the Penal Code. The magistrates who tried these cases discharged the accused persons under S.253 (L) of the Code of Criminal Procedure; but in revision the learned Sessions Judge of Kottayam reversed the orders of discharge and directed further enquiry. The question for consideration in these cases is whether that order is correct. 2. Since the publications involved in these cases are substantially the same and since the questions arising for consideration are also the same, these cases may be disposed of together. 3. There was a complaint by a client of the respondent before the Bar Council that the respondent used some blank papers signed and given by the former and created a deed of assignment, in favour of his wife, of a decree obtained in the name of the client, and thereafter he started proceedings in execution of the decree, appearing both for the assignor and the assignee. The High Court directed the District Judge of Kottayam to enquire into the matter and submit a report. The District Judge conducted an enquiry and submitted a report, wherein he stated that the case of the client, that the respondent took signed papers from her and utilised them for making up the deed of assignment in the name of his wife, was not established; but by obtaining the assignment of a decree of a client of his in the name of his own wife, the respondent was guilty of professional misconduct. 4. After the report the matter came up before a Full Bench of this Court, when the respondent filed a statement in court submitting that he realised fully that what he did was not in consonance with the traditions and ethics of the profession and that he regretted for that. He also prayed that he might be dealt with leniently. The Full Bench accepted that statement, but expressed their displeasure and warned the respondent against such conduct in the future. The three newspapers published a news item about the proceedings before the Full Bench; and the respondent complained in the present proceedings that the news item was defamatory. 5. He also prayed that he might be dealt with leniently. The Full Bench accepted that statement, but expressed their displeasure and warned the respondent against such conduct in the future. The three newspapers published a news item about the proceedings before the Full Bench; and the respondent complained in the present proceedings that the news item was defamatory. 5. The entire evidence contemplated by S.252 of the Code of Criminal Procedure was recorded in the cases by the magistrates, the prosecution witnesses were cross-examined in detail and some documents were also produced and marked for the defence through the prosecution witnesses. After all that, the magistrates considered the whole evidence in the cases and recorded findings that the publications alleged were per se defamatory, but since they came within the Fourth Exception to S.499 of the Penal Code, the accused persons were entitled to be discharged; and in that view they discharged the accused persons under S.253 (1) of the Procedure Code. 6. The cases were taken up in revision before the learned Sessions Judge; and he was of opinion that the question of rebuttal of the prosecution evidence and the finding that the Fourth Exception applied were premature in the cases. According to him, the magistrates should have considered the applicability, of any of the exceptions to S.499 only after charges were framed and not before. He reasoned further that under S.105 of the Evidence Act, the burden of proving the existence of circumstances bringing the cases within any of the General Exceptions of the Penal Code or within any special provision contained in any other part of the same Code was upon the accused persons, and therefore, until charges were framed and the accused persons pleaded one of the Exceptions, the court was not competent to consider the applicability of the Exceptions. In the words of the learned Sessions Judge himself, "the question at this stage is merely one of presumption and not of proof". That is the line of reasoning that found favour with the learned Sessions Judge; and the question for consideration is whether that reasoning is correct. 7. Notice was issued in these cases to the State Prosecutor and he has also appeared before me. 8. That is the line of reasoning that found favour with the learned Sessions Judge; and the question for consideration is whether that reasoning is correct. 7. Notice was issued in these cases to the State Prosecutor and he has also appeared before me. 8. S.253 of the Code of Criminal Procedure recites that if the magistrate upon taking all the evidence referred to in S.252, and making such examination of the accused as he thinks necessary, finds that no case against the accused has been made out, which, if unrebutted, would warrant a conviction, shall discharge him. According to the learned Sessions Judge, the magistrate, at this stage, is entitled only to consider the prosecution case without any rebuttal. But it is apparent that under S.253 (1) the entire evidence recorded, including the statement of the accused, if any, has to be considered by the magistrate. There is no warrant for holding that the magistrate should not consider the circumstances and the case of the accused person, brought out in cross-examination or by the other evidence for the defence produced and marked through the prosecution witnesses. If the magistrate is bound to frame a charge, as the learned Sessions Judge thinks, in a case like the cases before me, where the entire evidence has already been recorded, without considering the whole evidence before him, but considering only the prosecution part of it, then the whole evidence has to be considered by the magistrate, after the framing of the charges, for the application of one of the Exceptions and for the acquittal of the accused. The scheme of the Procedure Code does not appear to be so; and there is no warrant for thinking that there is such a water tight compartmentalisation of the prosecution evidence for making out a prima facie case and the defence evidence in rebuttal. I may also mention at this stage that the learned State Prosecutor has candidly admitted that he finds it difficult to support the line of reasoning adopted by the learned Sessions Judge. 9. S.254, Criminal Procedure Code, is also referred to by the learned Sessions Judge. He says that what is contemplated by S.254 is only a presumption that the accused has committed an offence and not the proof thereof. 9. S.254, Criminal Procedure Code, is also referred to by the learned Sessions Judge. He says that what is contemplated by S.254 is only a presumption that the accused has committed an offence and not the proof thereof. The presumption under S.254 is a legal presumption warranted by the evidence on record, and not a presumption that the accused has committed the offence on the basis of a part alone of the evidence. The presumption must be based on the entire evidence so far recorded; and if such a presumption cannot be warranted by the evidence so far recorded, the magistrate will not be justified in drawing the presumption from the prosecution part of the evidence alone. 10. It is well known that what S.105 of the Evidence Act provides is that the court shall not presume the existence of facts, which may bring a case within the Exceptions; that is, the initial or evidential burden of introducing the evidence to establish any such circumstance is on the accused person. Such evidence may be introduced by the prosecution themselves, or it may be introduced by the defence by cross-examination of the prosecution witnesses or by the statement of the accused or by defence evidence. If such evidence has been introduced in any of the aforesaid ways, and if, after consideration of that evidence, the court is of opinion that the accused person may rely on any of the Exceptions, the burden of the accused under S.105 is discharged (Vide Bala Prasad Dhansukh v. State of Madhya Pradesh AIR.1961 Mad. Pra. 241; Babu Lal v. State AIR. 1960 All. 223; Parbhoo v. Emperor AIR. 1.941. All. 402 F. B. and Chaitan Charan Das v. Raghunath Singh AIR. 1959 Orissa 141). The last of these cases arose out of an order of discharge under S.253 (2) of the Code of Criminal Procedure in a prosecution under S.500 of the Penal Code. In that case the same contention appears to have been raised, viz., that the magistrate should have framed charges before he applied any of the Exceptions to S.499, and that argument was based on S.105 of the Evidence Act. The Division Bench of the Orissa High Court repelled that contention. In that case the same contention appears to have been raised, viz., that the magistrate should have framed charges before he applied any of the Exceptions to S.499, and that argument was based on S.105 of the Evidence Act. The Division Bench of the Orissa High Court repelled that contention. I am therefore of opinion that the learned Sessions Judge was in error in holding that the magistrates should have framed charges before they considered the applicability of the Fourth Exception to S.499 of the Penal Code. 11. The next question is whether on merits the magistrates were justified in their conclusion that the publications were substantially true reports of the proceedings of the Full Bench. The learned counsel of the respondent points out that by reading the entire reports one will be left with the impression that the respondent committed misappropriation, that he was found guilty of the same by the District Judge, that he admitted his guilt before the Full Bench and that the Full Bench accepted his apology. It cannot be denied that it is possible to form such an impression by reading the newspaper reports. At the same time, T am not satisfied that the reports are not substantially true versions. The publications state that the client of the respondent complained to the Bar Council that the respondent misappropriated her moneys and that the District Judge of Kottayam was directed to conduct an enquiry and report on the matter. The publications then state that the District Judge reported that the respondent was guilty, and before the Full Bench he acknowledged his guilt and prayed for leniency. These reports are substantially true, though they do not clearly state that what the respondent was found guilty of was not misappropriation, but only professional misconduct. The complaint before the Bar Council was that the respondent committed professional misconduct by misappropriating the client's money and doing some other acts; and the subject of the enquiry by the District Judge was also that. Therefore, when the newspaper reports stated that the respondent was found guilty by the District Judge, it cannot be said that the statement was not substantially correct. It is also well established that an order of discharge can be interfered with in revision only if the order is perverse or illegal or has resulted in miscarriage of justice. Therefore, when the newspaper reports stated that the respondent was found guilty by the District Judge, it cannot be said that the statement was not substantially correct. It is also well established that an order of discharge can be interfered with in revision only if the order is perverse or illegal or has resulted in miscarriage of justice. I do not think that in these cases such perversity, illegality or miscarriage of justice is established. I am therefore of opinion that the view expressed by the magistrates that the newspaper reports were substantially true is not liable to be interfered with in revision. 12. In the result, the Criminal Revision Petitions are allowed, the orders of the learned Sessions Judge are set aside and the orders of discharge passed by the magistrates are restored. The accused persons are discharged. Allowed.