V.P. Gopalan Nambiyar, C.J.
1. The constitutionality of the Public Property (Prevention of Destruction and Loss) Ordinance, 1978 (Ordinance No. 15 of 1978) promulagat-ed by the Governor of Kerala is assailed in this writ petition by the two petitioners, the first of them, the president of the Kerala State Electricity Board Workers Association, a Trade Union registered under the Trade Unions Act, and the second, an employee of the Board. The Union had called a general strike to enforce its demands made to the Board. This was followed by a strike of the employees. It is the petitioners' case that the Ordinance is part of the repressive measures taken against the strike and the strikers.
2. The Ordinance is short, and consists only of two Sections. For the sake of convenience, the Sections may be reproduced:
1. Short title and commencement,
(1) This Ordinance may be called the Public Property (Prevention of Destruction and Loss) Ordinance, 1978.
(2) It shall come into force at once.
2. Punishment for committing mischief in respect of public property. Whoever attempts to commit or commits or instigates, incites or otherwise abets the commission of, mischief within the meaning of Section 425 of the Indian Penal Code (Central Act 4S of 1860), in respect of public property shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine which may extend to two thousand rupees.
Explanation. For the purposes of this section, 'public property' means any property owned or controlled by the Government or by the Kerala State Electricity Board or by the Kerala State Road Transport Corporation or by any other Corporation owned or controlled by the Government.
On a plain reading of the provisions, it seems to us plain that the Ordinance is dealing only with the offence of 'mischief as known to Section 425 of the Indian Penal Code, taking out the offence in respect of public property and subjecting the same to a higher term of imprisonment ranging from six months to five years and a higher amount of fine extending to Rs. 2000/-. The explanation to Section 2 provides a sort of definition to the term 'public property.
3. Section 425 of the Indian Penal Code defines 'mischief. In substance, it consists in causing destruction of any property or any such change in such property as destroys or diminishes its value or utility. Both public and private property are included within the ambit of the offence. Section 426 provides for punishment for the offence which may extend to three months rigorous imprisonment. Sections 427, 428, 429, 430 etc. deal with aggravated forms of the offence of mischief, depending on the extent of damage to property, the kind of property to which mischief is caused, the mode of causing damage, the object of committing mischief, and so on. Under the First Schedule to the Criminal Procedure Code read with Section 2 of the said Code, the offence of mischief is a bail- able and non-cognizable offences. The object of the Ordinance, it is stated, is to provide enhanced punishment for the offence of mis-chief to public property and to make the offence a non-bailable one. We are not really concerned with the legislative intent in passing the Ordinance.
4. The attack against the Ordinance has been squarely that the subject-matter of the Ordinance is such that a legislation by the State would have been invalid unless it had received the assent of the President; and therefore the Ordinance could not have been promulgated by the Governor without previous instructions from the President This is the combined effect of the proviso to Article 213(1) of the Constitution read with Clause (c) of the said proviso. For the sake of convenience, we shall quote the relevant portion of Article 213.
213. (1) If at any rime, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him require:
Provided that the Governor shall not, without instruction from the President promulgate any such Ordinance if.
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
xx xx xx xxxx xx xx xx(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the legislature of the State which has been reserved for the consideration of the President and assented to by him. XX XX XX XXXX XX XX XX
From Clause (3) of Article 213, it would be seen that the Ordinance making power of the Governor is co-extensive with the legislative power of the State. The previous instruction of the President in promulgating the Ordinance is necessary if the legislation would have been invalid, if enacted by the State unless it had received the assent of the President. It is admitted that the previous instruction of the President has not been obtained. The contention is that, were the Legislature of the State to enact a law on the same subject-matter as the one covered by the Ordinance, it would have been invalid for want of Presidential assent, and therefore, the Ordinance cannot be saved without the previous instruction of the President. The Indian Penal Code, it is pointed out is an existing law with respect to a matter enumerated in the Concurrent List; and the provisions of the Ordinance, if enacted by the State Legislature would be repugnant to the provisions of the Penal Code. In that view, the Parliamentary enactment is to prevail and the State enactment must yield. This is the result of Article 254 (1) and (2). We may now extract them:
254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be the existing law, shall per-vail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with res- pect to the same matter including a law adding to. amending, varying or repealing the law so made by the Legislature of the State.
The argument is that as the offence of mischief has been dealt with and covered by the Indian Penal Code, it would be quite repugnant to its provisions to segregate mischief to Public Property, and deal with it in a special way by providing an enhanced punishment for the said offence. This was said to be the result of the Ordinance. Despite the attempt made by the learned Additional Advocate-General to get out of the difficulty, we think that the contention raised by counsel for the petitioners is well-founded and must be accepted. The argument of the learned Additional Advocate-General was that the provisions of the Penal Code and the offences created by it are left untouched, and these supplemental provisions dealing with mischief to public property alone have been enacted by the impugned Ordinance, to operate side-by-side with the provisions of the Penal Code. The learned Additional Advocate-General drew our attention to Section 5 of the Penal Code which enacts
5. Nothing in this Act shall affect die provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors, or airmen in the service of the Government of India or the provisions of any special or local law;
and contended that the provisions of the Ordinance are a 'special law' as defined in Section 42 of the Penal Code. It was contended that the Ordinance would also constitute a 'local law' as defined in Section 41 of the Code. These Sections may well be noticed.
41. 'special law' is a law applicable to a particular subject.
42. 'local law' is a law applicable only to a particular part of India.' These may be noticed along with Sections 2 and 40 of the Code which are as follows:
2. Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.40. Except in the Chapters and Sections mentioned in Clauses (2) and (3) of this section, the word 'offence' denotes a thing made punishable by this Code.
In Chapter IV, Chapter VA and in the following sections, namely,- Sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word 'offence' denotes a thing punishable under this Code, or under any special or local law as herein after defined.
And in Sections. 141, 176, 177, 201, 202, 212, 216 and 441, the word 'offence' has the same meaning when the thing punishable under the special or local law in punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.' Under Section 2, liability to punishment is exclusively under the provisions of the Penal Code, in respect of offences made punishable by it The concept of the term offence is explained in Section 40. In brief, under the first paragraph, it - means anything punishable by the Code; under the second paragraph, for certain specified Chapters and Sections, it means a thing punishable under the Code or under any special or local law, and under the third paragraph, for certain specified Sections, the term means anything punishable under the special or local law with imprisonment for six months or upwards. The offence of mischief and the Chapter, under which it occurs are not within paragraphs two and three of Section 40. They fall under paragraph one-
5. It is a nice and debatable question as to whether the offence of mischief is governed by the rule of exclusiveness sanctioned by Section 2, or by the non obstante clause in Section 5 which saves the provisions of any 'special' or local' law. That would raise the question whether the Ordinance can be regarded at all as a special or local law. The question again is not altogether free from difficulty. While on the principle of some decisions it can pass as 'local law' (vide Public Prosecutor v. Annamalai : AIR1954Mad321 ) on the strength of certain other decisions it can be regarded only as 'special law' (vide In re Arunagiri1 natha AIR 1939 Mad 21 : 40 Cri LJ 224). We need not pause to consider or to examine these decisions. Let us assume, without deciding, that it is possible for the Ordinance to co-exist as a'special' or a 'local law' side-by-side with the Penal Code. That would not however clinch the question, of its constitutional validity or efficacy. These must be decided on the provisions of the Constitution.
6. Articles 245 and 248 of the Constitution deal with the Legislative powers of Parliament and the States. These are as follows:
245. (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
246. (1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List').
(2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List).
(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List1).
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State list.
It would be seen that the power of a Legislature of a State to make laws even in respect of a matter covered by the Concurrent List is subject to the power of the Parliament to legislate on an entry in the said List. The entry with which we are concerned in this case is Entry 1 of List III of the Vllth Schedule to the Constitution which is as follows:
1. Criminal law, including all matters in eluded in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
If we now turn again to Article 254 (already extracted) we would be able to see that if a law made by the Legislature of a State with respect to any of the matters in the Concurrent list, contains a provision repugnant to an earlier law made by Parliament or an existing law, the State law shall prevail, only if it had received the Presidential assent Despite the strenuous argument of the learned Additional Advocate-General, we are not satisfied that there was no repugnancy between the provisions of the Penal Code and the provisions of the Ordinance. The provisions of Section 425 of the Code deal with mischief to both public and private property The Ordinance takes out only mischief relating to public property as defined by the explanation and treats the same different from the way in which the Penal Code has dealt with them. The nature and character of the offences, their cognizability, their bailable nature all these have been changed. We are unable to say in the circumstances that there is no repugnance to the provisions of the Criminal Procedure Code. The learned Additional Advocate-General invited our attention to Section 219(2) of the Criminal Procedure Code which enacts:
XX XX XX(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law:Provided that, for the purposes of the section, an offence punishable under Section 379 of the Indian Penal Code shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
But this Section is one among the fasciculus of Sections dealing with joinder of charges. It would be inappropriate to draw from this provision a principle of general application as to when offences can be regarded as being of the same, or of a different kind.
7. We may refer to a few of the decisions cited. In Zaverbhai v. State of Bombay : 1SCR799 the question arose regarding the repugnancy of the Bombay Act 36 of 1947 to the provisions of the Essential Supplies (Temporary Powers) Act, 1946 as amended by Central Act 52 of 1950. Under Section 7(1) of the Central Act the punishment provided was for three years or with fine or with both. The Bombay amendment enhanced the punishment to seven years. This change would at once oust the jurisdiction of the Magistrate and make the offence exclusively triable by the Court of Session. The Bombay Act was passed with the assent of the Governor-General on the footing that the subject-matter fell within the Concurrent List. The contention advanced on behalf of the State was that subsequent to the Bombay Act of 1947 there was Central legislation in 1948 and 1949 and again in 1950, and that as a result of these legisla- tions, the Bombay enactment had become inoperative. The question with respect to the earlier two Central enactments fell to be decided with reference to Section 107 (2) of the Government of India Act, 1985; and with respect to the amendment of 1950, with reference to Article 254(2) of the Constitution. The Supreme Court observed (at p. 1827 of Cri LJ):
The important thing to consider with reference to this provision is whether the legislation is 'in respect of the same matter'. If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107 (2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.' (page 757 of AIR) : (at p. 1827 of Cri LJ). Considering the matter from the above point of view and analysing the provisions of the Act, the Court observed:
Section 7 is thus a comprehensive code covering the entire field of punishment for offences under the Act, graded according to the commodities and to the character of the offence. The subject of enhanced punishment that is dealt with in Act No. 36 of 1947 is also comprised in Act No. 52 of 1950, the same being limited to the case of hoarding of foodgrains. We are, therefore, entirely in agreement with the opinion of Chagla C. J. and Chainani J. that Act No. 52 of 1950 is a legislation in respect of the same matter as Act No. 36 of 1947.' (page 757 of AIR): (at p. 1827 of Cri LJ):
The decision is apposite in judging the question of repugnancy as between the provisions of the Ordinance and the provisions of the Penal Code. So again is also the decision in State of Jammu and Kashmir v. M. S. Farooqi : 3SCR881 . The actual decision in this case as to whether the Jammu and Kashmir Government Servants' Prevention of Corruption Act was repugnant to the provisions of the All India Services Act and the Discipline and Appeal Rules, should not cause much of a difficulty as the same had to be given in the light of Article 254 as applicable to the State of Kashmir at the relevant time as notified by the President under Article 370 of the Constitution. But the relevant decisions on the question of repugnancy were all surveyed, and it was held that the State enactment had to yield before the All India Services Act and the Discipline Rules. The conclusion was expressed thus (at p. 1746-47):
37. From the perusal of the provisions of the two statutory laws, namely, the All India Services (Discipline and Appeal) Rules, 1955, and the Jammu and Kashmir Government Servants' (Prevention of Corruption) (Commission) Act, 1962, it is impossible to escape from the conclusion that the two cannot go together. The impugned Act provides for additional punishments not provided in the Discipline and Appeal Rules. It also provides for suspension and infliction of some punishments. It seems to us that in so far as the Commission Act deals with the infliction of disciplinary punishments it is repugnant to the Discipline and Appeal Rules. Parliament has occupied the field and given clear indication that this was the only manner in which any disciplinary action should be taken against the members of the All India Service. In so far as the Commission Act deals with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative competence of the Jammu and Kashmir State and not repugnant to the provisions of the Discipline and Appeal Rules. But as the provisions dealing with investigation for possible criminal prosecution are inextricably intertwined with the provisions dealing with infliction of disciplinary punishment the whole Act must be read down so as to leave the members of the All India Services outside its purview.
We may then refer to Ukha Kolhe1State of Maharashtra AIR 1963 SC 1531 : 1963 (2) Cri LJ 418 which upheld the validity of the Bombay Prohibition Act as against certain provisions of the Criminal Procedure Code. But that was because the Bombay Act had received the Presidential assent.
8. Some attempt was made by the learned Additional Advocate-General to contend that the definition of 'mischief as given in the Indian Penal Code has been incorporated into the Ordinance on the scheme and the language of the provisions of the Ordinance. We are unable to hold that there has been any incorporation of the provisions of the Penal Code regarding mischief into the provisions of the Ordinance, What the Ordinance plainly and simply purports to do is to deal with the offence of mischief as defined by the Penal Code, and to erect mischief in res pect of Public property into a special category punishable with an enhanced terra of imprisonment and a larger amount of fine. These clearly appear to us to be trespassing into forbidden field having regard to Arti cles 245 and 246 and 254 of the Constitution which we have referred to earlier, and to Lists I and III of the VIIth Schedule, that the State's legislative power under the entries in the Concurrent List is only subject to the power of Parliament to legislate over the game, and, in the absence of Presidential assent, must yield to any existing law with respect to the said matter. There was an existing lawthe Indian Penal Code on the subject- Legislative action taken by the State should be regarded as repugnant to the provisions of the 'existing law' viz. the Penal Code under Article 254 of the Constitution, in the light of the principle of the decisions noticed, viz. Zaverbhai v. State of Bombay : 1SCR799 and State of Jammu and Kashmir v. M. S. Farooqi : 3SCR881 . Sections 2 and 40 of the Penal Code only reinforce that conclusion. Having regard to Article 254(1) of the Constitution a law made by the Legislature of a State in regard to the subject-matter of the Ordinance would be void, unless it has received Presidential assent. The same infirmity would affect the Ordinance, as the Ordinance making power of the Governor is conterminous with the State's Legislative power. If so, the previous instruction of the President would have been necessary under the proviso to Article 213(1) read with Clause (c) of the said proviso. The same not having been obtained, the Ordinance should fail.
9. We accordingly allow this writ petition and declare the Ordinance void. There will be no order as to costs.