1. This is a reference by the learned Sessions Judge of Nadia in the case of one Baharali Biswas who has been convicted under Section 182, I. P.C., and sentenced to a fine of Rs. 50. The facts of the case are briefly as follows: some time in 1929 Baharali the present petitioner, lodged information at the thana in which he stated that certain articles belonging to his master, the zamindar, had been stolen and that he suspected a certain paik of his as having been concerned in the theft. The police after investigation came to the conclusion that the information was false and that really it was the petitioner himself who was concerned in the theft. On the complaint of the Sub-Inspector of Police summons was issued against the petitioner under Section 182, I. P.C., for appearance on 24th March 1930. On that date the accused petitioner appealed and filed a petition definitely alleging that the police bad not held any proper investigation and had not examined any witnesses on the petitioner's side and had reported his case to be false on account of their being dissatisfied with him for some reason or other and he prayed that his witnesses might be examined by the Magistrate and a local investigation might also be held if necessary. The Magistrate who then had the cognizance of the case refused his petition pointing out that the petitioner might prove his case while adducing the defence evidence at the trial.
2. The Magistrate ' then proceeded to hear the case under Section 182, I. P.C., and convicted the petitioner. The petitioner then moved the learned Sessions Judge and the learned Sessions Judge has referred the case to this Court recommending that the order convicting the petitioner should be set side on two grounds; first of all the petition dated 24th March 1930 filed by the present petitioner before the Magistrate praying for a judicial inquiry in his case amounted to a petition of complaint and the learned Magistrate was wrong in not taking proper cognizance of it and disposing of it in accordance with law, and secondly, that although the learned Magistrate had jurisdiction to prosecute the accused petitioner under Section 182, I. P.C., on the complaint of the police officer who had submitted a final report declaring the petitioner's case to be false the Magistrate failed to exercise a sound judicial discretion in summoning the petitioner straightaway on the complaint of the police without giving the petitioner an opportunity to prove his case. Now it is quite clear that the learned Sessions Judge's contentions have no basis whatever in the law that will be found in the Indian Codes. Neither the Indian Penal Code nor the Criminal Procedure Code provides that before a Magistrate can enquire into a case under Section 182, I. P.C. on the complaint of a police officer the accused person must have an opportunity of proving his case. There is no such provision in the law. Nor do I think that such a provision is necessary for it is perfectly clear that the accused person in such a case would have an ample opportunity of proving it when he would be called on to enter upon his defence. Obviously it would be a waste of time ,to allow the accused person to prove his case before he is called on to answer a charge under Section 182, I. P.C. That would be to go through the same operation twice. 1 am prepared to say that it cannot be said for one moment that the Magistrate in refusing to hold such an inquiry and in summoning the petitioner straightaway on, the complaint of the) police officer has not exercised a sound discretion. I am equally prepared to say that even though the Magistrate has not exercised a sound judicial discretion that would not be an error of law. At the highest it might be an error of discretion and an error of discretion to my mind is not an error of law. The Code does not provide for any such inquiry or any such opportunity being given to the accused person. I always prefer the Codes and I also find it safer to be guided by the provisions of the Code and not by the idiosyncrasies of individual Judges. The learned Judge has relied upon two decisions of this Court in support of the view which he asked this Court to take; one is the case of Queen-Empress v. Sham Lal  14 Cal. 707 (F.B.) a decision of the Full Bench. If I understood this decision rightly what the Pull Bench would seem to lay down is that the Magistrate should not take cognizance of an alleged offence under Sections 29 and 292, Criminal P.C., until the alleged offender has had an opportunity of supporting the original charge or abandoning it in due course of law. That is not the same to say that if the Magistrate does not do so and the accused person is convicted that conviction is illegal. With the greatest respect I would regard the decision in the case of Queen-Empress v. Sham Lal  14 Cal. 707 (F.B.) as merely laying down what at the highest are really pious hopes. The other decision to which I have been referred is the case of Munshi Isser v. Emperor  14 C.W.N. 765. That case does not of course lay down the proposition that if a person is convicted under Section 182, I. P.C. without being allowed a preliminary opportunity of showing that his case is true that the conviction under Section 182 is bad in law. What the learned Judges there remark is as follows:
In our opinion they had a right to have their case investigated and the truth or falsity of the charges determined in a proper tribunal.
3. With that proposition I entirely agree. Surely the accused persons have a right to have their cases investigated and the truth or falsity of the charges determined in a proper tribunal. It hardly requires a decision of the Court to decide the some-what elementary proposition. This was done in the present case because the case was heard judicially by the Magistrate and the accused was convicted. It cannot therefore be said for one moment that the Magistrate has refused to take his evidence. As far as I can see what the case of Munshi Isser v. King Emperor lays down is that the Magistrate must not refuse to take evidence of the accused person with which proposition I entirely agree. In the present case, as I have already pointed out the evidence adduced on behalf of the accused person was taken. Neither of these decisions lays down the proposition that a conviction under Section 182, I. P.C. is bad in law because the accused had been given no opportunity of showing whether his case is true or false. I am prepared to say that in view of the express provisions of law it would be very difficult for any Court to lay down any such proposition.
4. The reference is therefore rejected.