Sen, J. - (1.) This reference under Section 432(1) of the Code of Criminal Procedure has been made by Sri P. C. Banerjee, Magistrate, Raigunj, for deciding whether Section 3 of the Bengal Criminal Law (Industrial Areas) Amendment Act, 1942 (Bengal Act IV of 1942), particularly the second clause of Sub-clause (c) of Section 3 of the Act, offends against Article 14 and Article 19(1)(d) of the Constitution of India.
(2.) Section 3 of the Bengal Criminal Law (Industrial Areas) Amendment Act, 1942, runs as follows : "Any person found between sunset and sunrise (a) armed with any dangerous or offensive instrument whatsoever with any intent to commit any criminal act; (b) disguised in any manner with intent to commit any criminal act; (c) in any dwelling house or other building whatsoever, without being able satisfactorily to account for his presence therein; or any person previously convicted of theft found between sunset and sunrise on board any vessel or boat or lying or loitering in any bazar, street, yard, thoroughfare or other place who shall not give any satisfactory account of himself; or any person having in his possession, without lawful excuse (the proof of which excuse shall be on such person) any implement of house-breaking; may be taken into custody by any police officer without a warrant and shall be liable on summary conviction before a Magistrate to imprisonment, for a term which may extend to three months."
(3.) The learned Magistrate has expressed the opinion that the second clause of Sub-clause (c) offends against Articles 14 and 19(1)(d) because it imposes a disability on a person with previous conviction for theft while another person not previously convicted is not subjected to this disability. The disability consists in being liable to be taken into custody and sentenced to imprisonment on a summary conviction when such a person is found between sunset and sunrise on board any vessel or boat or lying or loitering in any bazar, street, yard, thoroughfare or any other place, provided he is unable to give satistactory account of himself. The very fact that the clause applies to a person with previous conviction of theft introduces a reasonable classification. Article 14 of the Constitution no doubt guarantees the right of equality before the law but numerous decisions of the Supreme Court have laid down that this Article does not take away the right of the legislature to introduce a reasonable classification based on intelligible differentia. Accordingly, the special law introduced for persons having a previous conviction for theft and therefore reasonably believed to be prone to commit theft must be considered a piece of legislation which is not hit by Article 14. It may be mentioned that Section 75 of the Indian Penal Code also is a piece of legislation introducing a special disability on persons with a previous conviction for theft or any other offence under Chapter XVII of the Indian Penal Code, viz., liability to suffer enhanced punishment; and Section 565 of the Code of Criminal Procedure similarly imposes the disability on such persons of being liable to police surveillance for a period that may be prescribed by the Magistrate. It cannot be suggested that these pieces of legislation, viz., Section 75 of the Indian Penal Code or Section 565 of the Code of Criminal Procedure are discriminatory and therefore hit by Article 14, because they arc based on a reasonable classification. Similarly, the second clause of sub-cluase (c) must be held to be based on reasonable classification. Not only this clause applies to a person with previous conviction for theft, but if such a person is found loitering in any bazar, street, thoroughfare or other place, he must be given an opportunity to give an account of himself; that is he must be given an opportunity to explain why he was present or loitering at the particular place. It cannot therefore be said that the clause is in any way unreasonable or that it offends Article 14 of the Constitution.;