PP v Datuk Harun bin Hj Idris & Ors  2 MLJ 116:
 2 MLJ 116
PUBLIC PROSECUTOR v DATUK HARUN BIN HAJI IDRIS & ORS
OCRJ KUALA LUMPUR
FEDERAL TERRITORY CRIMINAL TRIALS NOS 31 AND OF 1976, FEDERAL TERRITORY CRIMINAL TRIALS NOS 32 OF 1976
10 August 1976
Criminal Law and Procedure — Transfer of case to High Court on certificates issued by Public Prosecutor under s 418A of the Criminal Procedure Code (FMS Cap6) — Whether valid — Whether s, 418A of Criminal Procedure Code unconstitutional and void — Inconsistency with Constitution — Criminal Procedure Code (FMS Cap 6), ss 417, 418A — Federal Constitution, arts 8 and 145(3)
In these cases the accused were originally charged in the Sessions Court. The cases were transferred to the High Court on certificates issued by the Public Prosecutor under theprovisions of section 418A of the Criminal Procedure Code. Counsel for the accused contended that section 418A of the Criminal Procedure Code violated Article 8(1) of the Federal Constitution and was therefore void and unconstitutional.
Article 8(1) of the Federal Constitution permits reasonable classification founded on intelligible differentia having a rational relation or nexus withthe policy or object sought to be achieved by the statute or statutory provision in question. In this case section 418A of the Criminal Procedure Code conferred discretionary power on the authority without laying down any policy or disclosing any tangible orintelligible purpose and thus conferred unguided and arbitrary powers enabling the authority to discriminate;
while the Public Prosecutor has power under Article 145(3) of the Federal Constitution, exercisable to hisdiscretion, to institute conduct or discontinue any proceedings the Public Prosecutor cannot in the exercise of his discretionary powers discriminate at will and infringe the provisions of Article 8(1) as judicially determined in the matter of clarification, differentia and nexus;
in this case the accused have been prejudiced, as if they are tried in the High Court, the High Court has greater powers of punishment than the Sessions Court;
section 418A of the Criminal Procedure Code as it is worded and as it stands is therefore unconstitutional and void by virtue of the provisions of Article 8(1) of the Federal Constitution and equally so the certificates issued by the Public Prosecutor thereunderfor the transfer of the cases to the High Court. The transfer effected thereby is accordingly of no effect;
it is open to the Public Prosecutor to apply for the transfer of the cases to the High Court undersection 417 of the Criminal Procedure Code and such application will then be considered on its merits.
Cases referred to
State of Madhya Pradesh v GC Mandawar AIR 1954 SC 493
Raja Surapayal Singh v Uttar Pradesh Government AIR 1951 All 674 at p 690
Lindsley v National Carbonic Gas Co Ltd (1911) 220 US 61
State of Bombay v FN Balsara AIR 1951 SC 318 326
Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538 547
Jyoti Pershad v Administrator of the Union Territory of Delhi AIR 1961 SC 1602
Kedar Nath Bajoria v State of West Bengal AIR 1953 SC 404 407
Chiranjit Lal Chowdhuri v Union of India AIR 1950 SC 41
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 79–818589–9092
Kathi Raning Rawat v State of Saurashtra AIR 1952 SC 123
Shree Meenakshi Mills Ltd v AVV Sastri AIR 1954 SC 13
Bidi Supply Company v Union of India AIR 1956 SC 479
Mohamed Sidin v Public Prosecutor  1 MLJ 106
Srinivasa Aiyar v Saraswathi Ammal AIR 1952 Mad 193 195
Anjali v State of West Bengal AIR 1952 Cal 825 829
Pillai v Mundayanake  AC 514
In re Bhupalli Malliah AIR 1959 And Pra 477
Pride of Derby v British Celanese Ltd  1 Ch 149 167
Long bin Samat & Ors v Public Prosecutor  2 MLJ 152
Matajog Dobey v HC Bhari AIR 1956 SC 44
Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2292
Moti Ram v Union of India AIR 1966 HP 25 3132
James v Commonwealth of Australia  AC 578 614
Devi Das Gopal Krishnan v State of Punjab AIR 1967 SC 1895 1901
Somnath Misra v Union of India AIR 1969 Orissa 37 42
Public Prosecutor v Fan Yew Teng  2 MLJ 1 3
1976 2 MLJ 116 at 117
Sahibzada Syed Mohamed Amirabbasi v State of Madhya Bharat AIR 1960 SC 768
Ujjam Bai v State of Uttar Pradesh AIR 1962 SC 1621
Naresh Sridhar Mirajkar v State of Maharashtra AIR 1967 SC 1
Jagmohan Singh v State of Uttar Pradesh AIR 1973 SC 947
Ram Dial v State of Punjab AIR 1965 SC 1518
Lachmandas Kewalram Ahuja v State of Bombay AIR 1952 SC 235 242
Barbier v Connolly (1885) 113 US 27
Dwarakadas Shrinivas v Sholapur Spinning and Weaving Co Ltd AIR 1954 SC 119
Yick Wo v Hopkins (1886) 118 US 356
Snowden v Hughes (1944) 321 US 1 811–121516
Tan Sri Datuk Haji Mohamed Salleh bin Abas, Solicitor-General (Abu Talib bin Othman and Datuk Haji Abdullah bin Ngah with him) for the Public Prosecutor.
RR Chelliah (Sri Ram, Tuan Haji Suhaimi and P Vijandran with him) for the 1st accused.
Edgar Joseph Jr (R Rajasooria and Abdul Kadir bin Kassim with him) for the 2nd accused.
Jag-Jit Singh (Yeah Poh San and Anthony Martin Sebastian with him) for the 3rd accused.
(delivering oral judgment):
These two cases involving charges against the three accused for forgery and criminal breach oftrust were transferred to the High Court in Kuala Lumpur from the Sessions Court in the Federal Territory on certificates issued by the Public Prosecutor under the provisions of section 418A of the Criminal Procedure Code (“the Code”) enacted and addedto the Code by the Criminal Procedure Code (Amendment and Extension) Act, 1976 and operative on January 10, 1976.
Counsel for the 2nd accused, with whom counsel for the other two accused associate themselves, has at the outset of this jointtrial raised the contention that section 418A of the Code violates Article 8(1) of the Federal Constitution and is therefore unconstitutional and void by virtue of the provisions of Article 4(1) which provides that the Constitution is the supreme law of theFederation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.
The question raised before me therefore resolves into the determination of the constitutional validityof section 418A of the Code in relation to the provisions of Article 8(1) of the Constitution.
2. Principles in considering the challenge to the constitutional validity of theimpugned section.
In considering the matter in issue the principles to be borne in mind are three-fold:
Firstly, there is a presumption – perhaps even a strong presumption – of the constitutional validityof the impugned section with the burden of proof on whoever alleges otherwise.
Secondly, the presumption is not however to be carried to the extent or stretched for the purpose of validating an otherwise invalid law, and if the force ofArticle 8(1) bears sufficiently strongly upon and against that presumption, it must then necessarily bend, break and give way under that force.
And thirdly, for this purpose a statute or statutory provision must be examined on its own meritsand not by comparison with other similar provisions (State of Madhya Pradesh v GC Mandawar AIR 1954 SC 493).
3. The law regarding Article 8(1) of the Constitution.
Article 8(1) of the Constitution provides that:
“All persons are equal before the law and are entitled to the equal protectionof the law.”
‘Equality before the law’ means the equal subjection of all persons to the law (Raja Surapayalsingh v Uttar Pradesh Government AIR 1951 All 674 at p 690), but ‘equal protection of the law’ does not mean that all laws must be uniform and as judicially interpreted inthe United States of America and India it means that a law may not discriminate for or against a person or class unless there is a rational basis for such discrimination.
The general basic principle culled from the authorities and judicially determined, succinctly put, is that Article 8(1) permits reasonable classification founded on intelligible differentia having a rational relation or nexus with the policy or object sought to be achieved by the statute or statutory provision in question.
The principles of classification and tests that have been applied by the Supreme Court and High Courts of India have in fact been adopted from decisions of the Supreme Court of the United States of America and are well defined and set out in the oft-quoted Americancase ofLindsley v National Carbonic Gas Co Ltd (1911) 220 US 61 and in the Indian Supreme Court cases ofState of Bombay v FN Balsara AIR 1951 SC 318 (at p 326 per Fazal Ali J.),Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538 547 (at p. 547) and in particular inJyoti Pershad v Administrator of the Union Territory of Delhi AIR 1961 SC 1602.
InJyoti Pershad AIR 1961 SC 1602 the principles were restated in slightly different terms, and the second proposition formulated therein is to the effect that the statuteor rule may not enact a discriminatory rule, but might confer discretionary power on an authority without laying down any policy, or disclosing any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling theauthority to discriminate, and that such a statute or rule would violate Article 14 of the Indian Constitution (our Article 8(1)) and must be struck down. That basically is the contention put forward on behalf of the accused in this case in relation to section 418A of the Code.
I cannot therefore accept the contention advanced by the Solicitor-General that sinceKedar Nath Bajoria v State of West Bengal AIR 1953 SC 404 407 in 1953, the Indian Supreme Court has done away with the necessity of any object or policy in the statute, asJyoti Pershad AIR 1961 SC 1602 in 1961 andRam Krishna Dalmia AIR 1958 SC 538 547 in 1958 clearly show otherwise.
It might perhaps be convenient at this stage to extract and referto the pertinent principles propounded
1976 2 MLJ 116 at 118
on this issue and appearing in leading Indian authorities, transposing for this purpose our Article 8(1) for Article 14 of the Indian Constitution.
Chiranjit Lal Chowdhuri v Union of India AIR 1950 SC 41.
A classification applying even to a single person or corporation is permissible providedit has a reasonable relation to the object of the law.
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 79–818589–9092.
The basis of the classification must appear in the statute itself; it cannot be presumed to exist.
There is no burden on the aggrieved person toshow that the intention of the legislature was hostile or inimical. It would be dangerous to introduce a subjective test in a matter as to which the Article itself lays down only a clear objective test.
A law which enablesthe executive to make an arbitrary discrimination is as bad as a law which itself creates such discrimination. Both are equally hit by Article 8(1).
Article 8(1) can be invoked not only against laws but also againstexecutive orders which are discriminatory.
Article 8(1) can be invoked not only against substantive provisions of law but also against discriminatory rules of procedure.
Kathi Raning Rawat v State of Saurashtra AIR 1952 SC 123.
There are three kinds of statutes which haveto be considered under Article 8(1):
Those which lay down the object and policy of the legislature and also make a classification.
Those which lay down the objectand policy, but leave classification to the executive.
Those which do not lay down any clear policy and yet leave the power of selection to the executive.
A law under this last categorybears on its very face the stamp of unconstitutionality and the mischief lies in the statute itself and is inherent in its very structure. Such a statute is void as being in clear conflict with Article 8(1) and it follows that every order or action ofthe executive under such a statute is invalid and has to be put aside.
For the purposes of Article 8(1), guidance is essential to the executive for the exercise of discretionary power. Unrestrained power of selection withouta guiding policy offends Article 8(1).
Bona fide application of discriminatory law is immaterial.
Kedar Nath Bajoria v State of West Bengal AIR 1953 SC 404 407 (at p. 407 per Sastri C.J.).
If a law does not lay down any clear policy and leaves it to the unfettered andunregulated discretion of the executive to apply the special procedure created by it to any person or group of persons at its will and pleasure, such law is a clear negation of Article 8(1). The mischief lies in the fact that in the absence of any regulative principleor policy the uncontrolled discretion of the executive is the sole determining factor for the application of that law.
Shree Meenakshi Mills Ltd v AVV Sastri AIR 1954 SC 13.
Article 8(1) forbids the executive being authorised to pick and choose between alternative rules of procedure for application to persons falling under the same class.
Bidi Supply Company v Union of India AIR 1956 SC 479.
A statute which gives uncontrolled powerto the executive to make an order against any person at its will and pleasure is hit by Article 8(1).
The test is whether there is or is not any substantial discrimination between persons in the same situation, and that is a question of fact to be determined on the circumstances of each case as it arises.
Ram Krishna Dalmia v Justice SR Tendolkar AIR 1958 SC 538 547.
Statutes which neither name the persons or things to whom they are intended to apply nor make any basis of classification and yet leave uncontrolled power of applying the statute tothe executive, are bad not because they do not themselves make a classification but because as a result of the absence of any guiding principle of policy they enable discrimination by the executive between persons or things belonging to the same group.
When a statute delegates power to classify, it is void if the power given is arbitrary or covers a classification going beyond the object of the statute. Arbitrary selection can never be justified by calling it classification.
Article 8(1) was considered by the Federal Court inMohamed Sidin v Public Prosecutor  1 MLJ 106 when the question of the validity of the Emergency (Criminal Trials) Regulations, 1964 made under the Emergency (Essential Powers) Act, 1964 was raised, and it was held that there was a nexus in the Act itself and the regulations between the criminal trial or classification of criminal trials to be tried under the special procedureprovided in the regultions and the object of the Act. The Federal Court therefore has accepted and approved the principles and tests of classification I have adverted to.
It would also perhaps appear not to be without some signifiance forthe purposes of considering the importance of Article 8(1) that it is omitted from the provisions of Article 149(1) which provide for the validity of legislation against subversion made under that constitutional provision notwithstanding its inconsistency withthe provisions of Articles 5, 9 or 10 which also involve fundamental liberties under Part II of the Constitution. Such then is the sanctity of Article 8(1) that no such law enacted by virtue of Article 149(1) can therefore notwithstanding its special nature violateits provisions.
It would in my view be of some considerable assistance in order to fully comprehend the ambit and pervasive purport of Article 8(1) to consider the provisions and effect of Article 8(2), the material part of which prescribes:
” Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law….”
1976 2 MLJ 116 at 119
Article 8(2) contains a specific and particular application of the principleof equality before the law and equal protection of the law embodied in Article 8(1). Therefore, discrimination against any citizen only on the grounds of religion, race, descent or place of birth or any of them in any law is prohibited under Article 8(2) and such discrimination cannot be validated by having recourse to the principle of reasonable classification which is permitted by Article 8(1) (Srinivasa Aiyar v Saraswathi Ammal AIR 1952 Mad 193 195 at p. 195;Kathi Raning Rawat v State of Saurashtra AIR 1952 SC 123 at p 125).
In cases not covered by Article 8(2), the general principle of equality embodied in Article 8(1) is attracted whenever discrimination is alleged, and if accordingly discrimination is alleged on a ground other than those specified in Article 8(2), the casemust be decided under the general provisions of Article 8(1). Article 8(1) and (2) must be read together, their combined effect is not that the State cannot discriminate or pass unequal laws, but that if it does so, the discrimination or the inequality mustbe based on some reasonable ground (Article 8(1)), and that, due to Article 8(2), religion, race, descent or place of birth alone is not and cannot be a reasonable ground of discrimination against citizens. The word ‘discrimination’ in Article 8(2) involves an element of unfavourable bias.
The use of the word ‘only’ in Article 8(2) connotes that what is discountenanced is discrimination purely and solely on account of all or any one or more of the grounds mentioned in thatclause. A discrimination based on any of these grounds and also on other grounds is not affected by Article 8(2) though it may be hit by Article 8(1) (Anjali v State of West Bengal AIR 1952 Cal 825 829 at p. 829). It would also be of some interest in this context to refer to for comparison the decision of the Privy Council inPillai v Mundayanake  AC 514 where the doctrine of pith and substance was considered and applied.
4. Powers of the Public Prosecutor in criminal prosecutions.
Article 145(3) of the Constitution reads:
“The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence ….”
Section 376(i) of the Code provides:
“The Attorney-General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.”
This section must certainly be circumscribed by and read subject to and in the light of theprovisions of Article 145(3) of the Constitution which in effect only restate and are declaratory of the existing powers and duties of the Attorney-General in relation to criminal prosecutions and proceedings at the date the Constitution was promulgated.
The Solicitor-General lays considerable stress on the wide powers of the Attorney-General in England in their historical context, stating he is a master to himself, and submits the same applies to the Attorney-General of Malaysia. It must be remembered howeverthat the constitutional rights, powers and duties of our Attorney-General are specifically spelt out in Article 145 of the Constitution and in particular in clauses (2) and (3) thereof, and it is clause (3) of that Article which is relevant and material tothe issue before me and which circumscribes and specifies the limits of his functions and powers in relation to criminal proceedings. It would be dangerous therefore to go beyond this specific constitutional provision and rely on the position in England by historicalanalogy to justify any action of the Attorney-General in our country which does not come within the ambit of that provision.
It would now be necessary to consider the connotation of the words ‘institute’ and ‘conduct’ in Article 145(3).
‘Institute’ in Article 145(3) cannot cover the subject-matter of section 418A of the Code, as the Solicitor-General contends. It must necessarily refer to the commencement of criminal proceedings and prosecutions andnot to such as have already been instituted and are pending or to criminal procedure as such. It may well be, as the Solicitor-General submits, that the Public Prosecutor has power, apart from the application of the provisions of sections 417 and 418A of theCode to direct any case triable in the Magistrate’s or Sessions Court to be tried in the High Court after a preliminary inquiry. This power to so direct would, if exercised, fall squarely within his discretion to institute and conduct criminal prosecutions and proceedings. The position under section 418A of the Code is wholly different as it has no relation to the institution and for that matter the conduct of criminal proceedings but instead clearly andexpressly concerns and relates to criminal cases already commenced and pending in the subordinate courts.
‘Conduct’ in Article 145(3) cannot but refer to the conduct of prosecutions in court, as it indeed appears ipsissimis verbis in section 377 of the Code. And ‘control and direction’ in section 376(i) of the Code is in respect of all criminal prosecutions and proceedings, and not of criminal procedure orthe jurisdiction of the courts.
‘Conduct’ of criminal prosecutions and proceedings in Article 145(3) cannot connote the regulation of criminal procedure or of the jurisdiction of the courts or the power or discretion to do so. Any contrary contention would in effect in my view be tantamount to the suggestion of the Public Prosecutor arrogating to himself the legislative powers vested in Parliament under Item 4 and in particular paragraph (b) thereof in List I (Federal List) in the NinthSchedule to the Constitution, with perhaps also the not inconceptible resultant intrusion or at least a more than peripheral incursion into the sphere of Article 121(1) of the Constitution which provides that the judicial power of the Federation is vested intwo High Courts and in such inferior courts as may be provided by federal law – namely, the Subordinate Courts Act, 1948 which specifies the subordinate courts and their respective civil and criminal jurisdiction.
Pursuing its signification, ‘to conduct’ means ‘to lead, guide, manage’ (In re Bhupalli Malliah AIR 1959 And Pra 477;Pride of Derby v British Celanese Ltd  1 Ch 149 167 at p. 167 per Lord Evershed, M.R.). It conveys the idea of leading and guiding, that is to say, the person who conducts the prosecution determines all important questions of policy involved in the courseof the trial and the attitude
1976 2 MLJ 116 at 120
to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence.
The effect of Article 145(3) of the Constitution andsection 376(i) of the Code was considered by the Federal Court inLong bin Samat & Ors v Public Prosecutor  2 MLJ 152. That was a case involving acharge undersection 324 of thePenal Code for voluntarily causing hurt but the evidence adduced before the Magistrate disclosed an offence undersection 326 of thePenal Code for voluntarily causing grevious hurt. The appellant was convicted under section 324 and appealed on the ground that the trial was a nullity since the Magistrate had no jurisdiction to hear the case as the evidence disclosed an offence under section 326. The Federal Court held on a reference that it was well within the wide discretion vested inthe Public Prosecutor to prefer a charge for a less serious offence than what the evidence in fact disclosed. This was clearly in my view a perfectly proper application of the provisions of Article 145(3) of the Constitution and section 376(i) of the Code asthe Public Prosecutor is not open to question by anyone if in the exercise of his discretion to institute and conduct prosecutions he chooses to prefer a charge for a lesser offence in the particular circumstances of a case.
The examples ofdiscretion vested in the Public Prosecutor the Solicitor-General refers to in relation to the issue and refusal of sanctions for prosecution and the withdrawal of charges pertain to the institution and conduct of prosecutions and not to the regulation of criminalprocedure.
If indeed the Attorney-General who by virtue of the provisions of section 376(i) of the Code is the Public Prosecutor is as omnipotent as the Solicitor-General contends by virtue of his discretionary powers under Article 145(3) and section 376(i) of the Code, then in my view there would be no point or purpose in including the Public Prosecutor in the provisions of section 417 of the Code in the matter of applying to the High Court for a transfer or other order thereunder, let aloneenacting separately special powers exercisable by him under section 418A of the Code, as the Public Prosecutor would on the contention advanced be in a position by virtue of the very provisions of the Constitution to virtually dictate the venue of trial andtrial court itself when initially applying for a summons or warrant, and the logical extension or rather perhaps the reductio ad absurdum of any such argument would be that the Public Prosecutor could indeed even specify anyparticular Magistrate, President or Judge for that matter to hear any particular case – a situation which I would consider to be absolutely inconceivable even to the most ardent advocates of any such contention.
In this context, the provisions of section 197 of the Indian Criminal Procedure Code (on which the Code is based but which has since been repealed and re-enacted in 1973) provide an interesting contrast. That section provides for the trial of Judges, Magistrates and certain publicofficials only with the previous sanction of the Central or State Government as the case may be, and subsection (2) thereof provides that the Central or State Government may determine the person by whom and the manner in which the prosecution is to be conductedand also specify the court of trial. The validity of this section which was challenged in relation to Article 14 of the Constitution of India (which equates with our Article 8(1)) was upheld by the Supreme Court of India inMatajog Dobey v HC Bhari AIR 1956 SC 44 as the discrimination was based upon a rational classification for the protection of public servants from harassment in the discharge of official duties.
In any event, in the exercise of his discretionary powers, the Public Prosecutor cannot discriminate at will and infringe the provisions of Article 8(1) as judicially determined in the matter of classification, differentia and nexus. If he can indeed doso, there would be no reason why in the exercise of his powers he cannot even infringe the specific provisions of Article 8(2). It is significant, in my view, that, unlike Article 8(2), Article 8(1) is not prefaced by the clause “Except as expressly authorisedby this Constitution”. And equally significant is the fact that neither is there a non obstante clause in Article, 145(3) to eliminate the application of Article 8(1) to its provisions. I would add that I respectfully associatemyself with what Chandrachud J., held inIndira Nehru Gandhi v Raj Narain AIR 1975 SC 2292 and so declare that the equality provision in Article 8(1) is part of the basic structure of the Constitution and a basic feature thereof. In that case two of the other Judges of the Indian Supreme Court did not deal with that question, one was equivocal and only Mathew J., held otherwise.
The Solicitor-General submitsthat if the Constitution allows discrimination, any such discrimination made must be upheld. That in fact is the position under Article 8(5) which expressly and specifically excepts provisions in respect of the five matters specified therein from being invalidatedor prohibited by Article 8. Article 145(3) does not however in terms make any classification whatsoever or allow discrimination but only endows the Attorney-General with discretionary powers in relation to the matters therein stipulated and is in myview subject to and must necessarily harmonise with the provisions of Article 8(1). The Solicitor-General in support of his proposition that any discrimination allowed by the Constitution must be upheld refers to two Indian cases, but there it was not discretionary discriminationat will that was allowed but classification that was made by the Constitution. A classification made by the Constitution itself cannot of course be struck down as violating Article 8(1). Accordingly inMoti Ram v Union of India AIR 1966 HP 25 3132 (at p. 31, 32), the distinction made between the State and Union Territories by section 54 of the Union Territories Act, 1963 was held to be valid as this classification appearsin the Indian Constitution itself. There is no and cannot indeed be any provision in our or the Indian Constitution which provides for or allows discretionary discrimination at will and pleasure without any reasonable classification.
The Constitutionis not to be construed in any narrow and pedantic sense (James v Commonwealth of Australia  AC 578 614 at p. 614 per Lord Wright) but it is equallytrue that this does not mean that the court is at liberty to stretch or pervert the language of the Constitution in the interests of any legal or constitutional
1976 2 MLJ 116 at 121
theory of omnipotence of the Attorney-General in matters relating tocriminal procedure and the jurisdiction of the courts.
Article 145(3) cannot therefore in my view on any reasonable and acceptable interpretation provide, as the Solicitor-General contends, any form of licence to override the provisions ofArticle 8(1) which is a fundamental liberty under Part II of the Constitution, and perhaps even also those of Article 121(1), and at the very least, in any event, applying the principle of harmonious construction of the Constitution – an accepted canon ofconstitutional interpretation, effect should be given to all these provisions as far as possible, and on that basis alone any exercise of discretionary powers by the Attorney-General must necessarily relate to reasonable classification and not arbitrary selection.
No resort can be had to Article 145(3) of the Constitution to ascertain the policy or guidance for the exercise of discretionary powers by the Attorney-General even if there were any. InDevi Das Gopal Krishnan v State of Punjab AIR 1967 SC 1895 1901, the Supreme Court of India reiterated (at p. 1901) that a liberal construction of an impugned statute should not be carried by the courts to the extent of always tryingto discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities, and that it is the duty of the court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature. The Supreme Court in that case in considering the provisions of a section of a statute conferring uncontrolled power on the provincial Government to levy a turnover tax at such rates as the Government might direct without any guidance or policy laid down in thatrespect in the statute itself, held that such a policy could not be gathered from the constitutional provisions as this would destroy the doctrine of excessive delegation and would also sanction conferment of power by the legislature on the executive without layingdown any guidelines in the statute (ibid, at p. 1901).
5. Section 418A of the Code.
Section 418A, as Ihave already said, was added to the Code early this year and provides:
“418A. (1) Notwithstanding the provisions of section 417, the Public Prosecutor may in any particular case triable by a criminal court subordinate to the HighCourt issue a certificate requiring the court before which the case is pending to remove it to the High Court at such place as may be specified in the certificate and to cause the accused person to appear or be produced before the said High Court.
(2) The power of the Public Prosecutor under sub-section (1) shall be exercised by him personally.
(3) Upon receipt of the certificate the court before which the case is triable shall without holding a preliminary inquiry under Chapter XVIItransmit the case to the High Court mentioned in the certificate and cause the accused person to appear or be brought before such High Court as soon as may be practicable; and thereafter the provisions of sub-section (3)(b) and sub-section (4) of section 417 shall apply to such case mutatis mutandis.”
Section 418A in its requirements would appear to be couched in somewhat peremptory and mandatory language, and, I would add, is not without a tinge ofpolite arrogance. This section, as it is worded and as it now stands, relates to any particular criminal case already instituted and pending in a subordinate court, and ex facie purports to giveunrestrained power of selection to the Public Prosecutor without any guide, object or apparent policy in the section itself or anywhere else in the Code.
I am unable to accept the submission of the Solicitor-General that it is not necessary tohave an object or policy in section 418A. He further submits that there is indeed classification in the section itself – namely, ‘any particular case triable by a criminal court subordinate to the High Court’. He goes on to say that there would thenbe sub-classification by the Public Prosecutor as each case arises, using his own discretion. In my view, what the Solicitor-General refers to is neither a class nor classification at all as the section relates to ‘any particular case’ (and not toa class or classes of criminal cases) out of all criminal cases triable in the subordinate courts, and even the latter would only be a general pool from which for the purposes of the application of the section classification should be made based on and having arational relation to a policy or object. There can be no question of sub-classification as put by the Solicitor-General, as that would only be a euphemism for arbitrary selection by the Public Prosecutor in the exercise of an uncontrolled discretion. In any event, even if there were this nebulous semblance of classification as the Solicitor-General argues, it would certainly be too indefinite and vague and without any reasonable principles for selection to withstand the test of constitutional validity.
The presumption of constitutional validity would appear to be of little assistance in the case of a statutory provision where on the face of it there is no classification at all or no principles for selection based on intelligible differentia, and hostile discriminationis writ large on the face of the impugned provision.
The discrimination which is prohibited by Article 8(1) is treatment in a manner prejudicial as compared with another person similarly circumstanced by the adoption of a law, substantive or procedural, different from the one applicable to the other person (Somnath Misra v Union of India AIR 1969 Orissa 37 42 (at p. 42). In other words, Article 8(1) prohibits hostile discrimination, but for this purpose it is only the effect of the impugned legislation that is material and it is not necessary to prove that the legislature was actuated by a hostile intention or motive against any particular personor class of persons (State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 79–818589–9092 (at pp. 89–90, 92 per Mukherjea J.; at p. 85 per Fazal AliJ.).
I now advert to the question as to whether in effect there would be any prejudicial effect as a result of the application of the provisions of section 418A to the accused in these two cases.
Counsel for the 2nd accusedargues that the accused have been deprived of the advantage of a preliminary inquiry and, as a result, of not knowing the evidence they have to meet at the trial, and also of enjoying the chance of a prima facie case notbeing made out at such inquiry, relying on the judgment of Lord Salmon in the Privy Council inPublic Prosecutor v Fan Yew Teng  2 MLJ 1 3 (at p3), but I am inclined to the view that there is not as much force in that contention as counsel
1976 2 MLJ 116 at 122
seeks to make out and that this complaint is not strictly pertinent in relation to the application of the provisions of section 418A andthe cases under consideration since they are triable in the subordinate courts and no question of any preliminary inquiry would therefore arise in any event. It is true however that apart from the application of section 417 of the Code, the accused would bedeprived of the advantage of a preliminary inquiry which would be their right under section 138 of the Code as a prelude to a trial in the High Court. Would there then be any other form of prejudicial effect on the accused as a result of the application of section418A and the transfer of these cases to the High Court in the sense that they would be subject to substantial discrimination and different treatment from other persons similarly situated whose cases are also triable by a criminal court subordinate to theHigh Court?
The charges against the three accused in the Sessions Court at the time the Public Prosecutor’s certificates were issued requiring the transfer of these cases to the High Court were for forgery under section 468 of the PenalCode and criminal breach of trust undersection 409 of thePenal Code, but the charge of criminal breach of trust was amended in the High Court when these cases were brought before me on May 29 this year to one undersection 406 of thePenal Code.
With regard to the forgery charge, this would be triable by the Sessions Court which can however only pass sentence not exceeding 5 years’ imprisonment ( section 64(1) of the Subordinate Courts Act, 1948) and a President of the Sessions Court conferred withspecial jurisdiction under section 63(3) of the Act can impose a term of up to 7 years’ imprisonment which is the maximum term prescribed undersection 468 of thePenal Code. But under this section a fine can also be imposed in addition to imprisonment buta President of the Sessions Court can only impose a fine not exceeding $10,000 and a President with special jurisdiction a fine not exceeding $20,000 (section 64(1) of the Act). There is no limit however to the amount of a fine the High Court can impose.
As to the criminal breach of trust charge pending in the Sessions Court undersection 409 of thePenal Code at the time of the transfer to the High Court, the Sessions Court which can try this offence (section 63(1) of the Act) can only impose a maximum termof 5 years’ imprisonment and a President with special jurisdiction a term of up to 7 years’ imprisonment, but the High Court can impose any term up to the maximum of 20 years’ imprisonment prescribed by the section. There is also additional liabilityto a fine and I have already referred to the unrestricted powers of the High Court as to the quantum imposable for a fine as opposed to the limits laid down for the Sessions Court.
The criminal breach of trust charge undersection 406 of thePenal Code before the High Court is well within the jurisdiction of the subordinate courts for the purposes of imposing a term of up to the maximum of 3 years’ imprisonment prescribed by that section, but the offence is punishable with imprisonment orwith fine or with both, and the unlimited quantum for a fine imposable by the High Court once again assumes significance.
The Solicitor-General however seeks to reply, in relation to the question of the punishment that can be imposed, on the provisions of section 64(2) of the Act (the equivalent in respect of First Class Magistrates being section 87(2) thereof) empowering the Sessions Court to award the full punishment authorised by law for the offence on which a person is convicted and submits thatthat would solve the situation as to any prejudicial consequences arising. It is my view that that sub-section cannot in any way affect the position as it may or may not be invoked, and even so, it is in any event limited by considerations of any previous convictionsor antecedents of the person concerned and requires reasons to be recorded for proceeding thereunder and also confirmation by the High Court of the exercise of the power thereunder by virtue of the provisions ofSection 37 of theCourts of Judicature Act 1964. Again the imposition of full punishment under that sub-section cannot in my view affect the limits of a fine imposable by the Sessions Court as the offences in question in the instant two cases do not specify any ceiling on the quantum of the imposable finewhich is therefore at large, and the limits set out in section 64(1) of the Act must accordingly still apply. Reliance on the applicability of section 64(2) of the Act would be as theoretical a possibility as the argument that the High Court could or might wellimpose even a lesser term of imprisonment or fine than the Sessions Court. It is my view that in considering this question of the jurisdiction and power of the court to impose punishment, the actual jurisdictional delimitations imposed by law must be taken intoaccount and borne in mind. The proviso to section 64(1) of the Act was also referred to by Solicitor-General but he agrees that it is of no relevance to the cases now under consideration.
In addition to all those matters, there is the strangephenomenon of the superimposition of section 418A over and above the existing provisions of section 417 of the Code which enable inter alios the Public Prosecutor to apply to the High Court for the transfer of any particular criminalcase to the High Court on specified grounds bearing reasonable classification with intelligible criteria related to the object of the section for the exercise of judicial discretion in making or refusing an order thereunder.
Under section 417 of the Code the ultimate decision as to whether any particular criminal case should be transferred from a subordinate court to the High Court does not depend merely on the arbitrary selection or whim of the Public Prosecutor but is determined ultimately onthe proper exercise of judicial discretion by the High Court. The Supreme Court of India has held inSahibzada Syed Mohamed Amirabbasi Amirabbas v State of Madhya Bharat AIR 1960 SC 768,Ujjam Bai v State of Uttar Pradesh AIR 1962 SC 1621,Naresh Sridhar Mirajkar v State of Maharashtra AIR 1967 SC 1 and again recently inJagmohan Singh v State of Uttar Pradesh AIR 1973 SC 947 that Article 14 of the Indian Constitution (our Article 8(1)) cannot be invoked in respect of judicial action. I would pause to observe that for reasons peculiar to its constitutional law the position is different in the United States of America where the judiciary is subject tothe inhibition of the Fourteenth Amendment to its Constitution against the denial of the equal protection
1976 2 MLJ 116 at 123
of laws which has exclusive reference to State (as opposed to Federal) action.
Even more curiously, section 417 of the Code which has long been in existence was re-enacted in toto at the same time as when section 418A was enacted. The original Bill for amending the Code had a minor amendment to the then existing section 417 but presumably in the Committee stagein the course of being passed by Parliament, section 417 was wholly re-enacted and section 418A added; both these new provisions do not therefore appear in the Bill.
The parallel co-existence of sections 417 and 418A would clearly seem tosuggest that what the Public Prosecutor cannot achieve or hope to achieve under section 417 can be got round by resort to his plenary residuary powers under section 418A which is prefaced by a non obstante clause to this very effect, and this appears to me to demonstrate all the more the arbitrary nature of the impugned section in all its stark reality, particularly as section 418A covers only part of section 417 which is much wider in scope and broader in application. The Solicitor-General agreesthat section 417(1)(cc) in fact covers what can be achieved under section 418A. Indeed there would appear to be nothing to prevent the Public Prosecutor having recourse to section 418A even when and immediately after an application under section 417 in respectof a particular criminal case has been refused by the High Court, and this the Solicitor-General in the course of his submission concedes is truly so.
No objects or reasons or other indication of any policy or guidance appear or indeed couldappear in the original Bill before Parliament for amending the Code by enacting section 418A as that section does not, as I have indicated, appear in the Bill but only in the Criminal Procedure Code (Amendment and Extension) Act, 1976 when enacted. But inthe course of his submission the Solicitor-General has produced an Explanatory Statement to amendments to be moved in Committee in Parliament by the Attorney-General regarding the re-enacted section 417 and the new section 418A, but paragraph 4 of that statement inmy view only restates those provisions to be introduced and enacted in a summarised form and does not indicate the object or policy of those provisions as the Solicitor-General contends, but rather the effect and end result thereof by merely recapitulating thembriefly.
The provision in sub-section (2) of section 418A that the Public Prosecutor has to exercise the power under sub-section (1) personally and the fact that this is not so in relation to an application by him under section 417 does notin my view affect the position or detract from the several considerations I have referred to and discussed and might indeed perhaps even exacerbate them. As I have said and I repeat, bona fide application of discriminatory lawis immaterial.
InRam Dial v State of Punjab AIR 1965 SC 1518, section 16(1) and section 14(e) of the Punjab Municipalities Act, 1911 both providedfor the removal of a member of the Municipality in the public interest, but whereas under section 16 provision was made for hearing the member to be removed, no such provision was made by section 14(e) which was therefore more drastic than section 16(1), and as resort could be had to either section, section 14(e) was struck down as being clearly discriminatory and in violation of the equivalent of our Article 8(1).
InLachmandas Kewalram Ahuja v State of Bombay AIR 1952 SC 235 242, section 12 of the Bombay Public Safety Measures Act, 1947, in so far as it authorised the State Government to direct the trial by the Special Court under the special procedure providedby the Act of any particular case, was held by the Supreme Court of India to contravene the counterpart of our Article 8(1) and was therefore unconstitutional and void, and the notification under which only two particular cases were sent for trial by theSpecial Court was also bad for the same reason.
6. Relevance of American constitutional law, theory, doctrines and cases.
It is perhaps necessary anddesirable to consider the relevance of American constitutional doctrines to our Constitution and the basis of some of the decisions of the Supreme Court of the United States of America, as in the course of his submission the Solicitor-General has made reference toseveral American Supreme Court decisions cited by Patanjali Sastri C.J., in his dissenting judgment inState of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 79–818589–9092(at pp 79–81) and also to some of those referred to Basu’s Commentaries on the Constitution of India (5th edition) Vol. 1. The Solicitor-General has also referred to the police powers of Parliament topass laws for promotion of health, morality, public order and public tranquillity for the benefit of the people as a whole as the third exception to the equal protection of the law clause in Article 8(1), and he categorically submits that section 418A of theCode is nothing more than the exercise of police powers by Parliament in granting discretion to the Public Prosecutor.
It is of some importance in considering these matters to bear in mind the specific nature and provisions of the Constitution ofthe United States of America and the rationes decidendi behind some of the American Supreme Court decisions. The Fifth Amendment to the American Constitution has no equal protection clause but only a due process clause as protectionagainst invasion of rights by the Federal authorities, and this amorphous concept of due process is elastic and broad enough to have been stretched in some American decisions to cover the concept of equal protection of the laws. Seventy five years later, the Fourteenth Amendment was introduced and section 1 thereof provides for due process and equal protection of the laws which has exclusive reference to and is aimed at State (as opposed to Federal) action to prevent discrimination by the individual States.
The United States Supreme Court has also developed the doctrine of eminent domain and also of police power which was left to the State and vested in the legislative branch of the State Governments. The Supreme Court has held that the equal protection clausein the Fourteenth Amendment cannot interfere with the police power of the State, that is to say, the power to make laws for the promotion of health, morality, public order and public tranquillity (Barbier v Connolly (1885) 113 US 27), provided there is no discrimination offending the equal protection clause.
1976 2 MLJ 116 at 124
The due process clause and the doctrines of eminentdomain and police power are American constitutional concepts and have no place, in my view, in our Constitution just as they have none in the Indian Constitution, as the concepts of these doctrines are in fact expressly provided for in these Constitutions. For example, the American doctrine of eminent domain is in fact embodied in the provisions of Article 13 of our Constitution. Bose J., categorically stated in the Supreme Court of India inDwarakadas Shrinivas v Sholapur Spinning and Weaving Co Ltd AIR 1954 SC 119 that there is no such doctrine of police power in the Indian Constitution. There are specific provisions in the Indian and the Federal Constitution expressly coveringthe sphere and purpose of this concept.
The other point to bear in mind in this connection is the United States doctrine of State action based essentially on the doctrine of federalism, to the effect that the United States Supreme Courtwill accept a restrictive interpretation of a State statute, ex facie violative of equal protection or of due process, by State authorities or courts, so as to avoid violation of these constitutional rights, particularly tocover exercises of racial discrimination. And conversely, if the law is on the face of it innocuous, but has been so construed and applied by officials or courts of the State as to violate any constitutional guarantee, the United States Supreme Court will strikeit down. The emphasis in either case is therefore not on the text of the statute but on the construction and application given to it by the State.
The converse application of the State action theory, namely, where a statute, which isnot necessarily vicious on the face, is struck down by the Supreme Court of the United States because of the unconstitutional application approved by the State is best illustrated by the celebrated case ofYick Wo v Hopkins (1886) 118 US 356 which held that if a statute gives arbitrary powers of discretion to an official in the manner of the application of its provisions it is tantamount to denial of equal protectionand is accordingly void.
It would also be of some interest in this context to refer to the decision of the American Supreme Court inSnowden v Hughes (1944) 321 US 1 811–121516 to this effect, that where a statute is fair on the face of it and non-discriminatory and does not violate equality and an administrative or executive act is impugned, the discrimination must be intentionalor purposeful. This point has of course no bearing on the matter before me as the challenge is to the constitutional validity of section 418A itself, and therefore even if whatSnowden v Hughes (1944) 321 US 1 811–121516 decided is valid in relation to our Constitution, it does not in any event apply (State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 79–818589–9092 at p. 85 per Fazal Ali J.; at p. 89–90, 92 per Mukherjea J.). But in any event an examination ofSnowden v Hughes (1944) 321 US 1 811–121516 shows that the decision in that case was based on considerations relevant to the United States Constitution but irrelevant to our Constitution, and I would refer to the following passages inthe judgments of Stone C.J. and Frankfurter J. (at pp. 8, 11–12, 15, 16):
Per Stone C.J.
“The unlawful administration by State officers of a State statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination … (p. 8).
It wasnot intended by the 14th Amendment and the Civil Rights Acts that all matters formerly within the exclusive cognisance of the States should become matters of national concern ….
A construction of the equal protection clause which wouldfind a violation of federal right in every departure by State officers from State law is not to be favoured.” (p. 11–12).
Per Frankfurter J.
“The Constitution doesnot assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State … (p. 15).
Our question is not whether a remedy is available for such an illegality, but whether itis available in the first instance in a Federal Court. Such a problem of Federal judicial control must be placed in a historic context of the relationship of the Federal courts to the States, with due regard for the natural sensitiveness of the States and forthe appropriate responsibility of State Courts to correct the action of lower State courts and State officials.” (p. 16).
The test of intentional or purposeful discrimination by executive action was accordingly adopted in respectof unlawful administration by State officers of a State statute fair on its face because finding a denial of equality in the action of State officers, acting under State laws, would convert what were essentially State questions, to be decided by State Courts, into Federal questions to be decided by Federal Courts.
It is therefore essential to consider the relevancy of these concepts and decisions in the context of our Constitution before placing reliance on or applying them to local situations, as American decisions are often influenced by special considerations arising out of the peculiar provisions of the American Constitution bearing upon State and Federal jurisdiction, whereas our Constitution applies both to the Federation and the States and provides acurial and judicial system with Federal jurisdiction.
I would however reiterate that even though the American doctrine and exercise of police power is not inhibited by the equal protection clause in section 1 of the Fourteenth Amendment tothe United States Constitution, it must not violate the equality of protection in that clause.
I cannot, therefore, in view of allthe circumstances I have discussed and applying the established principles of law I have adumbrated, accept any of the three propositions formulated by the Solicitor-General, namely, (a) that there is reasonable classification in the impugned section 418A, (b) that even if there is none, the Public Prosecutor has absolute discretion under Article 145(3) of the Constitution, and (c) that in any event, the accused have not been prejudiced in any way.
The Court stands as arbiter in holding the balancebetween individuals and between the State and the individual, and will not have the slightest hesitation to condemn and strike down any statutory shelter for bureaucratic discrimination, any legislative refuge for the exercise of naked arbitrary power inviolation of any of the provisions of the Constitution, and equally any executive action purported to be taken thereunder.
1976 2 MLJ 116 at 125
There exists side by side in the Code, as I have stated, sections 417 and 418A, both designedto achieve the same purpose in so far as it relates to the transfer to the High Court of criminal cases triable by a subordinate court, and I am accordingly constrained to conclude that section 418A of the Code violates Article 8(1) of the Constitution andmust therefore be struck down as malignant in contrast with the benign provisions of section 417.
I therefore declare section 418A, as it is worded and as it now stands, unconstitutional and void by virtue of the provisions of Article 4(1) of the Constitution and equally so the certificates issued by the Public Prosecutor thereunder for the transfer of these cases to the High Court. The transfer effected thereby is accordingly of no effect.
Transmission to the High Court underthe section 418A channel therefore fails but this is not necessarily the end of the matter, as an application by the Public Prosecutor for transmission under the section 417 channel is still open and available to him if he chooses to apply thereunder, in which event the court will consider the application within the ambit of that statutory provision and on its merits.
Solicitors: RR Chelliah Bros; Sri Ram, Chan & Chia; Adlan & Suhaimi; Joseph & Son; Dato’ Rajascoria & Son; Kadir Kassim & Co; Jag-Jit Singh & Co