1. Preliminary

These two cases involving charges against the three accused for forgery and criminal breach of trust 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 added to 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 joint trial 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 the Federation 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 validity of 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 the impugned 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 validity of 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 of Article 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 merits and 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 protection of 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) (at p. 690), but 'equal protection of the law' does not mean that all laws must be uniform and as judicially interpreted in the 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 American case of Lindsley v National Carbonic Gas Co Ltd (1911) 220 US 61 and in the Indian Supreme Court cases of State of Bombay v FN Balsara AIR 1951 SC 318, 326 (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 in Jyoti Pershad v Administrator of the Union Territory of Delhi AIR 1961 SC 1602.

In Jyoti 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 statute or rule may not enact a discriminatory rule, but might confer discretionary power on an authority without laying down any pol