P.C. Borooah, J.
1. The first petitioner Dilip Chakravarty is the Editor and the second petitioner Jayanta Kumar Gon is the printer and publisher of 'Bangladesh', a Bengali Weekly newspaper, printed on behalf of the Bangladesh Publication at 'Presmen' located at No. 9, Nabin Pal Lane, Calcutta 9 and published from Mercantile Buildings, 9, Lall Bazar Street, Calcutta.
2. In the issue dated October 26, 1975 of. the said newspaper an article was published entitled 'Bardhaman Zila Shasaker Kirti'. This article appeared in pages 1 and 11 of the said issue and contained various imputations of a defamatory nature concerning Sri Ashoke Chatterji I. A. S., District Magistrate and Collector of the District of Burdwan, The imputations were to the effect that Sri Chatterji had taken Rs. 27,000/- for the purpose of marriage of his sister-in-law's daughter from some Rice Mill owners of Burdwan and that lakhs of rupees had changed hands during the last Procurement season and that officers including the District Magistrate himself had profited by such transactions, As the Article contained imputations in respect of acts done by Sri Chatterji in the discharge of his public functions as the District Magistrate of Burdwan, the Public Prosecutor of the City Sessions Court at Calcutta, on the basis of a sanction accorded by the State under Section 198-B(3)(b) of the Code of Criminal Procedure, 1898 filed a petition of complaint before the Chief Judge, City Sessions Court at Calcutta on January 10, 1974 against the two petitioners. The learned Judge after hearing the learned Public Prosecutor and scrutinising the petition of complaint and a copy of the said newspaper dated 26th October 1973, issued process under Section 500 of the Indian Penal Code against the two petitioners.
3. The case was ultimately transferred to the Bench of Sri N. G. Chowdhury, Judge, 9th Bench of the City Sessions Court for disposal. A petition was filed before the learned Judge for expunging from the record the copy of the said Weekly newspaper which had been marked Exhibit 2. It was contended before the learned Judge that the newspaper could not be proved without producing the original manuscript written and signed by the special correspondent and sent to the Editor of the said newspaper. It was further contended that the Editor, by no stretch of imagination, could be said to have made or published the impugned Article. The learned Judge by his order dated June 26, 1974 held that Exhibit 2 had been brought in evidence in accordance with Section 81 of the Indian Evidence Act and he further held that as in Section 1 of the Press and Registration of Books Act, 1867 the term 'Editor' has been defined to mean a person who controls the selection of matter that is published in a newspaper, the Editor cannot escape responsibility although the impugned article may have been received from a special correspondent. Being aggrieved by the said order of the learned Judge the petitioners have obtained the present Rule and have come up before us.
4. Mr. Biren Mitra, learned Advocate appearing on behalf of the petitioners before us, has raised two contentions. Firstly, that the newspaper (Exhibit 2) has not been proved in accordance with law and Section 81 of the Indian Evidence Act has no manner of application. According to Mr. Mitra, the newspaper could not be brought in evidence without calling the author of the Article and proving the same in manner indicated in Section 61 of the Indian Evidence Act, Mr. Mitter further contended that assuming that Section 81 of the Indian Evidence Act applied, the newspaper itself could only be proved but not the contents. In support of this argument he referred to two decisions of the Calcutta and Punjab High Courts, namely N. Chaudhury v. R.G. Dutta, reported in : AIR1971Cal53 and Har Bhajan Singh v. State of Punjab reported in AIR 1961 Punj 215 : 1961-1 Cri LJ 710.
5. The second contention of Mr, Mitra was that the acts attributed to the. District Magistrate, Burdwan, in the offending Article could not be said to be acts done by the said Officer as a public servant in the discharge of his public functions and as such, Section 198-B of the Code of Criminal Procedure 1898 had no manner of application and the District Magistrate was free, if he was aggrieved by the said Article, to proceed against the petitioners under Section 198 of the Code.
6. Section 81 of the Indian Evidence Act provides that a Court shall presume the genuineness of the documents mentioned in the section including a newspaper and under Section 4 of the Act when a Court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. Therefore, when the prosecution produced a copy of the issue of 'Bangladesh' dated 26th October, 1973 and proved that the said copy was available for sale, Section 81 was attracted and the learned Judge was fully justified in admitting the said newspaper into evidence. Once the newspaper was admitted into evidence it was for the petitioners to prove that the said newspaper was not the correct copy of the issue of 'Bangladesh' which was published on the 26th October, 1973.
7. The ratio of the decisions cited by Mr. Mitra was that a statement of fact in a newspaper was merely hearsay and the presumption under Section 81 of the Indian Evidence Act cannot be treated as proof of the facts contained in the newspaper.
8. In the instant case the point in issue is not the truth or otherwise of the statement of facts contained in the article in pages 1 and 11 of the issue dated the 26th October 1973. The question that has to be determined is whether the imputations contained in the said article defamed the District Magistrate of Burdwan. If the imputations are shown to be prima facie defamatory, the petitioners are free to contend that any of the exceptions to Section 499 of the Indian Penal Code were attracted. Once the petitioners plead justification the burden would shift to them to prove that what was reported in the newspaper was true or was published with good motives and for justifiable ends- The first contention of Mr. Mitra thus fails.
9. As regards the second submission we have looked to the copy of the said newspaper and have scrutinised the alleged offending Article. It appears to us that the learned Judge was justified in issuing process under Section 500 of the Indian Penal Code as it prima facie appears that the imputations relate to the conduct of Sri Chatterji in the exercise of his functions as the District Magistrate of Burdwan. The mere fact that Sri Chatterji could have filed an application under Section 198 of the Code of Criminal Procedure 1898, does not necessarily prevent the State from proceeding against the petitioner under Section 198-B of the Code.
10. It must be borne in mind that the State has also an interest in protecting its reputation which is likely to be tarnished if an attack on the integrity of its Officers in the exercise of their public functions goes unchallenged.
11. The application accordingly fails and the Rule is discharged.
12. Let the records be sent down as soon as possible.
H.N. Sen, J.
13. I agree.