Himachal Pradesh High Court
Ram Bhaj & Ors vs State Of H.P. And Anr on 17 October, 2024
( 2024:HHC:9849 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No 67 of 2017.
Reserved on: 18.09.2024.
Date of Decision: 17.10.2024.
Ram Bhaj & Ors ...Petitioners
Versus
State of H.P. and Anr. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioners : Mr. Karan Singh Kanwar, Advocate.
For the Respondents : Mr. Jitender Sharma, Additional Advocate General.
Rakesh Kainthla, Judge The petitioners have filed the present petition for quashing of criminal proceedings arising out of the complaint filed under Section 16 read with Section 18 of Himachal Pradesh Land Preservation Act, 1978, passed by learned Chief Judicial Magistrate, Nahan, District Sirmaur, H.P. (Learned Trial Court).
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present petition are that the State filed a complaint against the accused before the learned Trial Court for the commission of offences punishable under Sections 16 and 18 of H.P. Land Preservation Act, 1978 for violation of Section 4(c) of Himachal Pradesh Land Preservation Act, 1978. It was asserted that field staff of Shillai Beat, Shillai Range of Renuka Ji Forest Division learnt about the unauthorized felling of trees on private land near Shillai market on 03.12.2014. A team comprising of Smt. Nirmala Devi Forest Guard, Sh. Gian Singh Forest Worker and Sh. Sunder Singh, a Forest Worker found 15 trees of Pine were cut on the private land owned by accused Nos.1 to 10. The enquiries also revealed that trees were illegally removed from private land bearing Khasra No. 4940/1875 to facilitate the conversion of the land into various plots. Three damage reports bearing No. 75/21, 76/21 and 77 of 2021 were issued by the forest guard for unauthorized felling of pine trees. The accused were warned not to indulge in any illegal activity. The accused continued to fell more trees on the land bearing Khasra No. 4940/1875. The forest department team again inspected the site on 08.12.2014 and found that 20 additional trees were cut by the accused. Thus, 35 pine trees 3 ( 2024:HHC:9849 ) were damaged by the accused. A damage report bearing No. 79 of 2021 was issued. The act of the accused violated Section 4 of the Land Preservation Act and Government of H.P Order No. FFE-B-
A(3)4/99 dated 10.09.2002. The accused also carried out cutting of the hill slope for plotting purposes which led to the uprooting of several trees. A total of 15 trees were damaged on the spot.
The accused admitted on 10.12.2014 that they had carried out the unauthorized felling of the pine trees. Hence, the complaint was filed before the Court for taking action against the accused as per the law.
3. Being aggrieved from the filing of the complaint, the accused/petitioners have filed the present petition asserting that the contents of the complaint and the documents annexed thereto do not disclose the commission of any cognizable offence. The learned Trial Court erred in issuing the summons.
The complaint is an abuse of the process of the Court. There is no legal evidence against the accused that shows their involvement. A perusal of the copy of the jamabandi for the years 2009-2010 shows that this land is not only co-owned by the petitioners/accused but by many other persons who have not been arrayed as parties. The trees were cut for bonafide domestic 4 ( 2024:HHC:9849 ) use. An owner can cut five trees without permission for his bonafide needs. Even if the prosecution case regarding the cutting of 35 trees is accepted to the correct, it would be within the permissible limit, as 20 co-owners can cut 100 trees in a year. The forest offences are compoundable as per the notification issued by the government if the value of the trees cut is less than ₹2,00,000/-. No complaint could have been filed without allowing the accused to compound the offence.
Therefore, it was prayed that the present petition be allowed and FIR be ordered to be quashed.
4. The State filed a reply making preliminary submissions reproducing the contents of the complaint. The contents of the petition were denied on merits. It was asserted that the petitioner had violated the provisions of the H.P. Land Preservation Act and the complaint was rightly filed against them. The Government notification was violated because permission of the competent authority was not obtained before the felling of the trees. Therefore, it was prayed that the present petition be dismissed. Some supplementary affidavits were also filed during the hearing.
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5. I have heard Mr. Karan Singh Kanwar, learned counsel for the petitioners and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State.
6. Mr. Karan Singh Kanwar, learned counsel for the petitioners submitted that all cases of illicit felling of trees where the felling was done to meet the bonafide domestic requirement and the offence is petty can be compounded. The forest offence in the present case falls within the definition of petty offence as the value of the trees as per challan is ₹1,62,748/-. The accused were willing to pay the amount as per the notification and they could not have been prosecuted. Only those offences where the accused are not willing to compound the offence or the value of the forest produce is between ₹2,00,000/- and ₹10,00,000/- can be taken to the court. Since the present case does not fall within these parameters, therefore no complaint could have been filed. Hence, he prayed that the present petition be allowed and the complaint be ordered to be quashed.
7. Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that as per 6 ( 2024:HHC:9849 ) notification dated 05.05.2010 only the forest offences committed under the Indian Forest Act, 1927 and not the offences committed under the Land Preservation Act can be compounded. Since in the present case the offence was committed under the Land Preservation Act, therefore this Notification does not apply to the present case. Hence he prayed that the present petition be dismissed, He relied upon the supplementary affidavit filed by Principal Secretary (Forests) to the Government of Himachal Pradesh in support of his submission.
8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
9. The parameters for exercising jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed: -
9. The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC 736: 2006 INSC 452 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:7
( 2024:HHC:9849 ) "12. The principles relating to the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when 8 ( 2024:HHC:9849 ) the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence. (v.) A given set of facts may make out: (a) purely a civil wrong; (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
10. Similar is the judgment in Maneesha Yadav v. State of U.P., 2024 SCC OnLine SC 643, wherein it was held: -
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12. We may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.10
( 2024:HHC:9849 ) (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
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11. It was submitted that the notification dated 05.05.2010 was issued in exercise of the power conferred under Section 68 of the Indian Forest Act, 1927 read with the directions issued by this Court vide judgment dated 28.08.2009 in COPC No. 56/2009 titled Kuldeep Singh Chauhan vs Balbir Singh and others. Therefore, the provisions of this notification are only applicable to the offences committed under the Indian Forest Act and not under the Land Preservation Act. The notification dated 10.09.2002 deals with the Land Preservation Act. Since the case of the petitioners/accused does not fall within the parameters of notification dated 10.09.2002, therefore compounding is not possible. This submission is acceptable.
Section 17 of the HP Land Preservation Act, 1978 provides that the provisions of Sections 52, 54, 55, 56, 58, 59, 60, 61, 62 and 64 excluding last sentences 66 and 73 of the Indian Forest Act 1927 shall so far applicable be read as part of the Act and every offence punishable under Section 16 shall be deemed to be a forest offence. Therefore, by virtue of this Section only selected provisions of the Indian Forest Act have been made applicable to H.P. Land Preservation Act and Section 68 which confers the 12 ( 2024:HHC:9849 ) power to compound the offences has not been made applicable to H.P. Land Preservation Act. Therefore, the power of compounding provided under Section 68 cannot be conferred upon the State Government under H.P. Land Preservation Act.
This is so because Section 19 of the H.P. Land Preservation Act confers the power to compound offences and confers the right upon the State Government to empower any Forest Officer to accept from any person a sum of money by way of compensation for the offence which such persons is suspected to have been committed. The sum of money accepted as compensation has been specified to be less than ₹500/- in each case. This power of the compounding of offences is quite different from the power conferred by Section 68 of the Indian Forest Act. Hence recourse cannot be had to the notification dated 05.05.2010 issued under the Indian Forest Act to claim that the offence committed by H.P. Land Preservation Act, 1978 should be compounded under that notification.
12. It was submitted that this interpretation can lead to illogical conclusions for instance if trees worth less than ₹ 2,00,000/- are cut from the protected forest, the offence can be compounded whereas the same trees cut from the private land 13 ( 2024:HHC:9849 ) to which H.P. Land Preservation Act applies cannot be compounded. This will encourage the people to cut the trees from the Government's land and pay compensation rather than cut the trees from their land. This will result in the depletion of the forest wealth of the State which the State is bound to protect under the H.P. Forest Act. The interpretation suggested by the State and the law enacted by the State Legislature can indeed result in this situation. But this Court does not sit over the wisdom of the legislature or the rule-making authorities but interprets the law as it stands. It was laid down by the Hon'ble Supreme Court in Ashwani Kumar v. Union of India, (2020) 13 SCC 585: 2019 SCC OnLine SC 1144 that the doctrine of separation of powers demands that the Courts should not encroach on the domain reserved for the legislature or executive. It was observed at page 597:
"10. Modern theory of separation of powers does not accept that the three branches perform mutually isolated roles and functions and accepts a need for coordinated institutional effort for good governance, albeit emphasises on benefits of division of power and labour by accepting the three wings do have separate and distinct roles and functions that are defined by the Constitution. All the institutions must act within their jurisdiction and not trespass into the jurisdiction of the other. Beyond this, each branch must support each other in the general 14 ( 2024:HHC:9849 ) interest of good governance. This separation ensures the rule of law in at least two ways. It gives constitutional and institutional legitimacy to the decisions by each branch, that is, enactments passed by the legislature, orders and policy decisions taken by the executive and adjudication and judgments pronounced by the judiciary in the exercise of the power of judicial review on validity of legislation and governmental action. By segregating the powers and functions of the institutions, the Constitution ensures a structure where the institutions function as per their institutional strengths. Secondly, and somewhat paradoxically, it creates a system of checks and balances as the Constitution provides a degree of latitude for interference by each branch into the functions and tasks performed by the other branch. It checks the concentration of power in a particular branch or an institution.
11. The legislature as an elected and representative body enacts laws to give effect to and fulfil the democratic aspirations of the people. The procedures applied are designed to give careful thought and consideration to wide and divergent interests, voices and all shades of opinion from different social and political groups. The legislature functions as a deliberative and representative body. It is directly accountable and answerable to the electorate and citizens of this country. This representativeness and principle of accountability is what gives legitimacy to the legislations and laws made by Parliament or the State Legislatures. Article 245 of the Constitution empowers Parliament and the State Legislatures to enact laws for the whole or a part of the territory of India, and for the whole or a part of the State respectively, after due debate and discussion in Parliament/the State Assembly.
12. The executive has the primary responsibility of formulating government policies and proposing legislation which when passed by the legislature become laws. By virtue of Articles 73 and 162 of the Constitution, 15 ( 2024:HHC:9849 ) the powers and functions of the executive are wide and expansive, as they cover matters in respect of which Parliament/State Legislature can make laws and vests with the executive the authority and jurisdiction exercisable by the Government of India or the State Government, as the case may be. As a delegate of the legislative bodies and subject to the terms of the legislation, the executive makes second-stage laws known as "subordinate or delegated legislation". In fields where there is no legislation, the executive has the power to frame policies, schemes, etc., which is coextensive with the power of Parliament or the State Legislature to make laws. At the same time, the political executive is accountable to the legislature and holds office till they enjoy the support and confidence of the legislature. Thus, there is interdependence, interaction and even commonality of personnel/members of the legislature and the executive. The executive, therefore, performs a multifunctional role and is not monolithic. Notwithstanding this multifunctional and pervasive role, the constitutional scheme ensures that within this interdependence, there is a degree of separation that acts as a mechanism to check interference and protect the non-political executive. Part XIV of the Constitution relates to "Services under the Union and the States", i.e. recruitment, tenure, terms and conditions of service, etc., of persons serving the Union or a State and accords them a substantial degree of protection. "Office of profit" bar, as applicable to legislators and prescribed vide Articles 102 and 191, is to ensure separation and independence between the legislature and the executive.
13. The most significant impact of the doctrine of separation of powers is seen and felt in terms of the institutional independence of the judiciary from other organs of the State. The judiciary, in terms of personnel, the Judges, is independent. Judges unlike members of the legislature represent no one, strictly speaking not even the citizens. Judges are not accountable and answerable 16 ( 2024:HHC:9849 ) as the political executive is to the legislature and the elected representatives are to the electorate. This independence ensures that the Judges perform the constitutional function of safeguarding the supremacy of the Constitution while exercising the power of judicial review in a fair and even-handed manner without pressure and favours. As an interpreter, guardian and protector of the Constitution, the judiciary checks and curbs violations of the Constitution by the Government when they overstep their constitutional limits, violate the basic structure of the Constitution, infringe fundamental rights or act contrary to law. The power of judicial review has expanded taking within its ambit the concept of social and economic justice. Yet, while exercising this power of judicial review, the courts do not encroach upon the field marked by the Constitution for the legislature and the executive, as the courts examine the legality and validity of the legislation or the governmental action, and not the wisdom behind the legislative measure or relative merits or demerits of the governmental action. Neither does the Constitution permit the courts to direct, advise or sermonise others in the spheres reserved for them by the Constitution, provided the legislature or the executive do not transgress their constitutional limits or statutory conditions. Referring to the phrase "all power is of an encroaching nature", which the judiciary checks while exercising the power of judicial review, it has been observed [Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364: 1 SCEC 358 quoting with approval dissenting opinion of Frankfurter J. in Trop v. Dulles, 1958 SCC OnLine US SC 62: 2 L Ed 2d 630: 356 US 86 (1958). Frankfurter, J. had observed: (in SCC OnLine US SC para 58)"18. ... '58. Rigorous observance of the difference between limits of power and wise exercise of power -- between questions of authority and questions of prudence -- requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to 17 ( 2024:HHC:9849 ) prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the Judges to sit in judgment on the wisdom of what Congress and the executive branch do.' [Asif Hameed, 1989 Supp (2) SCC 364, p. 374, para 58]"] that the judiciary must be on guard against encroaching beyond its bounds since the only restraint upon it is the self-imposed discipline of self- restraint. Independence and adherence to constitutional accountability and limits while exercising the power of judicial review give constitutional legitimacy to the court decisions. This is the essence of the power and function of judicial review that strengthens and promotes the rule of law.
14. Constitution Bench judgments in Kesavananda Bharati v. State of Kerala [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225], State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592], I.R. Coelho v. State of T.N. [I.R. Coelho v. State of T.N., (2007) 2 SCC 1] and State of T.N. v. State of Kerala [State of T.N. v. State of Kerala, (2014) 12 SCC 696] have uniformly ruled that the doctrine of separation of powers, though not specifically engrafted, is constitutionally entrenched and forms part of the basic structure as its sweep, operation and visibility are apparent. The Constitution has made demarcation, without drawing formal lines, amongst the three organs with the duty of the judiciary to scrutinise the limits and whether or not the limits have been transgressed. These judgments refer to the constitutional scheme incorporating checks and balances. As a sequitur, the doctrine restrains the legislature from declaring the judgment of a court to be void and of no effect, while the legislature still possesses the legislative 18 ( 2024:HHC:9849 ) competence of enacting a validating law that remedies the defect pointed out in the judgment. [Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283] However, this does not ordain and permit the legislature to declare a judgment as invalid by enacting a law, but permits the legislature to take away the basis of the judgment by fundamentally altering the basis on which it was pronounced. Therefore, while exercising all important checks and balances function, each wing should be conscious of the enormous responsibility that rests on them to ensure that institutional respect and comity is maintained.
15. In Binoy Viswam v. Union of India [Binoy Viswam v. Union of India, (2017) 7 SCC 59], this Court referring to the Constitution had observed that the powers to be exercised by the three wings of the State have an avowed purpose and each branch is constitutionally mandated to act within its sphere and to have mutual institutional respect to realise the constitutional goal and to ensure that there is no constitutional transgression. It is the Constitution which has created the three wings of the State and, thus, each branch must oblige the other by not stepping beyond its territory.
16. In Kalpana Mehta v. Union of India [Kalpana Mehta v. Union of India, (2018) 7 SCC 1], Mr Justice Dipak Misra, the then Chief Justice of India, under the headings "Supremacy of the Constitution", "Power of Judicial Review" and "Doctrine of Separation of Powers", has held that the Constitution is a supreme fundamental law which requires that all laws, actions and decisions of the three organs should be in consonance and accord with the constitutional limits, for the legislature, the executive and the judiciary derive their authority and jurisdiction from the Constitution. Legislature stands vested with an exclusive authority to make laws thereby giving it supremacy in the field of legislation and law-making, yet 19 ( 2024:HHC:9849 ) this power is distinct from and not on a par with the supremacy of the Constitution, as: (SCC p. 47, para 41) "41. This Court has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions. The conferment of the power of judicial review has a great sanctity as the constitutional court has the power to declare any law as unconstitutional if there is a lack of competence of the legislature keeping in view the field of legislation as provided in the Constitution or if a provision contravenes or runs counter to any of the fundamental rights or any constitutional provision or if a provision is manifestly arbitrary."
17. Having said so, Dipak Misra, C.J. went on to observe:
(Kalpana Mehta case [Kalpana Mehta v. Union of India, (2018) 7 SCC 1], SCC p. 47, para 42) "42. When we speak about judicial review, it is also necessary to be alive to the concept of judicial restraint. The duty of judicial review which the Constitution has bestowed upon the judiciary is not unfettered; it comes within the conception of judicial restraint. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of power. Judges are expected to interpret any law or any provision of the Constitution as per the limits laid down by the Constitution."
Earlier, Dipak Misra, C.J. had observed: (SCC p. 46, para
39) "39. From the above authorities, it is quite vivid that the concept of constitutional limitation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can really be no straitjacket approach in the sphere of separation of powers when issues involve democracy, the essential morality that flows from the Constitution, the interest of the citizens in certain spheres like environment, sustenance of social interest, etc. and empowering the 20 ( 2024:HHC:9849 ) populace with the right to information or right to know in matters relating to candidates contesting election. There can be many an example where this Court has issued directions to the executive and also formulated guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualisation and fructification of statutory rights."
18. D.Y. Chandrachud, J., in his separate and concurring judgment for himself and A.K. Sikri, J. in Kalpana Mehta [Kalpana Mehta v. Union of India, (2018) 7 SCC 1] had referred to the nuanced "doctrine of functional separation" that finds articulation in the articles/books by Peter A. Gerangelos in his work titled "The Separation of Powers and Legislative Interference in Judicial Process, Constitutional Principles and Limitations" [ Hart Publishing, 2009.] , M.J.C. Vile's book titled "Constitutionalism and the Separation of Powers" [ Oxford University Press, 1967.], Aileen Kavanagh in her work "The Constitutional Separation of Powers" [ David Dyzenhaus and Malcolm Thorburn (Eds.), Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016).] and Eoin Carolan in his book titled "The New Separation of Powers -- A Theory for the Modern State" [ Oxford University Press, 2009.]. These authors in the context of a modern administrative State have reconstructed the doctrine as consisting of two components: "division of labour" and "checks and balances", instead of isolated compartmentalisation, by highlighting the need for interaction and interdependence amongst the three organs in a way that each branch is in cooperative engagement but at the same time acts, when necessary, to check on the other and that no single group of people are able to control the machinery of the State. Independent judiciary acts as a restraining influence on the arbitrary exercise of power.
19. Referring to the functional doctrine, D.Y. Chandrachud, J., had cited the following judgments:
21( 2024:HHC:9849 ) (Kalpana Mehta case [Kalpana Mehta v. Union of India, (2018) 7 SCC 1], SCC pp. 123-24, paras 249 & 251) "249. In State of U.P. v. Jeet S. Bisht [State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586], the Court held that the doctrine of separation of powers limits the "active jurisdiction" of each branch of Government. However, even when the active jurisdiction of an organ of the State is not challenged, the doctrine allows for methods to be used to prod and communicate to an institution either its shortfalls or excesses in discharging its duty. The Court recognised that fundamentally, the purpose of the doctrine is to act as a scheme of checks and balances over the activities of other organs. The Court noted that the modern concept of separation of powers subscribes to the understanding that it should not only demarcate the area of functioning of various organs of the State but should also, to some extent, define the minimum content in that delineated area of functioning. S.B. Sinha, J. addressed the need for the doctrine to evolve, as administrative bodies are involved in the dispensation of socio-economic entitlements: (SCC p.
619, para 83) '83. If we notice the evolution of the separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, and private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise, we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.' 22 ( 2024:HHC:9849 ) (emphasis in original) ***
251. In Supreme Court Advocates-on-Record Assn. v. Union of India [Supreme Court Advocates-on- Record Assn. v. Union of India, (2016) 5 SCC 1], Madan B. Lokur, J. observed that separation of powers does not envisage that each of the three organs of the State -- the legislature, executive and judiciary -- work in a silo. The learned Judge held: (SCC p. 583, para 678) '678. There is quite clearly an entire host of parliamentary and legislative checks placed on the judiciary whereby its administrative functioning can be and is controlled, but these do not necessarily violate the theory of separation of powers or infringe the independence of the judiciary as far as decision-making is concerned. As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed--whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence.'"
20. Thereafter, D.Y. Chandrachud, J. had observed:
(Kalpana Mehta case [Kalpana Mehta v. Union of India, (2018) 7 SCC 1], SCC pp. 125-26, paras 254-56) "254. While assessing the impact of the separation of powers upon the present controversy, certain precepts must be formulated. Separation of powers between the legislature, the executive and the judiciary is a basic feature of the Constitution. As a foundational principle which is comprised within the basic structure, it lies beyond the reach of the constituent power to amend. It cannot be substituted or abrogated. While recognising 23 ( 2024:HHC:9849 ) this position, decided cases indicate that the Indian Constitution does not adopt a separation of powers in the strict sense. Textbook examples of exceptions to the doctrine include the power of the executive to frame subordinate legislation, the power of the legislature to punish for contempt of its privileges and the authority entrusted to the Supreme Court and the High Courts to regulate their own procedures by framing rules. In making subordinate legislation, the executive is entrusted by the legislature to make delegated legislation, subject to its control. The rule-
making power of the higher judiciary has trappings of a legislative character. The power of the legislature to punish for contempt of its privileges has a judicial character. These exceptions indicate that the separation doctrine has not been adopted in the strict form in our Constitution. But the importance of the doctrine lies in its postulate that the essential functions entrusted to one organ of the State cannot be exercised by the other. By standing against the usurpation of constitutional powers entrusted to other organs, the separation of powers supports the rule of law and guards against authoritarian excesses.
255. Parliament and the State Legislatures legislate. The executive frames policies and administers the law. The judiciary decides and adjudicates upon disputes in the course of which facts are proved and the law is applied. The distinction between the legislative function and judicial functions is enhanced by the basic structure doctrine. The legislature is constitutionally entrusted with the power to legislate. Courts are not entrusted with the power to enact law. Yet, in a constitutional democracy which is founded on the supremacy of the Constitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of 24 ( 2024:HHC:9849 ) fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution. Entrustment to the judiciary of the power to test the validity of law is an established constitutional principle which co-exists with the separation of powers. Where a law is held to be ultra vires there is no breach of parliamentary privileges for the simple reason that all institutions created by the Constitution are subject to constitutional limitations. The legislature, it is well settled, cannot simply declare that the judgment of a court is invalid or that it stands nullified. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court. Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine. That indeed is the basis on which validating legislation is permitted.
256. This discussion leads to the conclusion that while the separation of powers, as a principle, constitutes the cornerstone of our democratic Constitution, its application in the actual governance of the polity is nuanced. The nuances of the doctrine recognise that while the essential functions of one organ of the State cannot be taken over by the other and that a sense of institutional comity must guide the work of the legislature, executive and judiciary, the practical problems which arise in the unfolding of democracy can be resolved through robust constitutional cultures and mechanisms. The separation doctrine cannot be reduced to its descriptive content, bereft of its 25 ( 2024:HHC:9849 ) normative features. Evidently, it has both normative and descriptive features. In applying it to the Indian Constitution, the significant precept to be borne in mind is that no institution of governance lies above the Constitution. No entrustment of power is absolute."
21. Having elucidated the doctrinal basis of separation of powers and mutual interaction between the three organs of the State in the democratic set-up, it would be important to draw clear distinction between interpretation and adjudication by the courts on one hand and the power to enact legislation by the legislature on the other. Adjudication results in what is often described as Judge-made law, but the interpretation of the statutes and the rights in accordance with the provisions of Articles 14, 19 and 21 in the course of adjudication is not an attempt or an act of legislation by the Judges. Reference in this regard can be made to the opinion expressed by F.M. Ibrahim Kalifulla, J. in Union of India v. V. Sriharan [Union of India v. V. Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695] who had, in the context of capital punishment for offences under Section 302 of the Penal Code, 1860 ("IPC", for short), held that the law- makers have entrusted the task of weighing and measuring the gravity of the offence with the institution of judiciary by reposing a very high amount of confidence and trust. It requires a Judge to apply his judicial mind after weighing the pros and cons of the crime committed in the golden scales to ensure that justice is delivered. In a way, therefore, the legislature itself entrusts the judiciary to lay down parameters in the form of precedents which is oft-spoken as Judge-made law. This is true of many a legislations. Such a law, even if made by the judiciary, would not infringe the doctrine of separation of powers and is in conformity with the constitutional functions. This distinction between the two has been aptly expressed by Aileen Kavanagh in the following words:
26( 2024:HHC:9849 ) "In general, the ability and power of the courts to make new law is generally more limited than that of the legislators, since courts typically make law by filling in gaps in existing legal frameworks, extending existing doctrines incrementally on a case-by-case basis, adjusting them to changing circumstances, etc. Judicial law-making powers tend to be piecemeal and incremental and the courts must reason according to law, even when developing it. By contrast, legislators have the power to make radical, broad-ranging changes in the law, which are not based on existing legal norms...."
22. Seven Judges of this Court in P. Ramachandra Rao v. State of Karnataka [P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578: 2002 SCC (Cri) 830] had, while interpreting Articles 21, 32, 141 and 142 of the Constitution, held that prescribing period at which criminal trial would terminate resulting in acquittal or discharge of the accused, or making such directions applicable to all cases in present or in future, would amount to judicial law-making and cannot be done by judicial directives. It was observed that the courts can declare the law, interpret the law, remove obvious lacuna and fill up the gaps, but they cannot entrench upon the field of legislation. The courts can issue appropriate and binding directions for enforcing the laws, lay down time limits or chalk out a calendar for the proceeding to follow to redeem the injustice and for taking care of the rights violated in the given case or set of cases depending on the facts brought to the notice of the court, but cannot lay down and enact the provisions akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973. Drawing a distinction between legislation as the source of law which consists of the declaration of legal rules by a competent authority and judicial decisions pronounced by the Judges laying down principles of general application, reference was made to Salmond on Principles of Jurisprudence (12th Edn.) which says:
27( 2024:HHC:9849 ) "we must distinguish law-making by legislators from law-making by the courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, insofar as they create law, can do so only in application to the cases before them and only insofar as is necessary for their solution. Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central function of the legislator."
23. Reference was also made to Professor S.P. Sathe's work on "Judicial Activism in India -- Transgressing Borders and Enforcing Limits," evaluating the legitimacy of judicial activism, wherein it was observed:
"Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as being an essential component of its role as a constitutional court." (p. 242) "In a strict sense, these are instances of judicial excessivism that fly in the face of the doctrine of separation of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality, such watertight separation exists nowhere and is impracticable. Broadly, it means that one organ of the State should not perform a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as "due process of law", "equal protection of law", or "freedom of speech and expression" is a legitimate judicial function, the making of an entirely new law ... through directions ... is not a legitimate judicial function." (p. 250) 28 ( 2024:HHC:9849 )
24. From the above, it is apparent that law-making within certain limits is a legitimate element of a Judge's role, if not inevitable. [ Lord Irvine: "Activism and Restraint: Human Rights and Interpretative Process", (1999) 4 EHRLR 350.] A Judge has to adjudicate and decide on the basis of legal provisions, which when indeterminate on a particular issue require elucidation and explanation. [ Aileen Kavanagh: "The Elusive Divide between Interpretation and Legislation under the Human Rights Act, 1998", (2004) 24 Oxford Journal of Legal Studies, 259-285.] This requires a Judge to interpret the provisions to decide the case and, in this process, he may take recourse and rely upon fundamental rights, including the right to life, but even then he does not legislate a law while interpreting such provisions. Such interpretation is called "Judge-made law" but not legislation. Aileen Kavanagh, in explaining the aforesaid position, had observed:
"... If there has not been a case in point and the Judge has to decide on the basis of legal provisions which may be indeterminate on the issue, then the Judge cannot decide the case without making new law...This is because Parliament has formulated the Act in broad terms, which inevitably require elaboration by the courts in order to apply it to the circumstances of each new case. Second, even in cases where Judges apply existing law, they cannot avoid facing the question of whether to change and improve it.... Interpretation has an applicative and creative aspect."
25. Legislating or law-making involves a choice to prioritise certain political, moral and social values over others from a wide range of choices that exist before the legislature. It is a balancing and integrating exercise to give expression/meaning to diverse and alternative values and blend it in a manner that it is representative of several viewpoints so that it garners support from other elected representatives to pass institutional muster and acceptance. Legislation, in the form of an enactment or 29 ( 2024:HHC:9849 ) laws, lays down broad and general principles. It is the source of law which the Judges are called upon to apply. Judges, when they apply the law, are constrained by the rules of language and by well-identified background presumptions as to the manner in which the legislature intended the law to be read. Application of law by the Judges is not synonymous with the enactment of law by the legislature. Judges have the power to spell out how precisely the statute would apply in a particular case. In this manner, they complete the law formulated by the legislature by applying it. This power of interpretation or the power of judicial review is exercised post the enactment of the law, which is then made subject-matter of interpretation or challenge before the courts.
26. The legislature, as an institution and a wing of the Government, is a microcosm of the bigger social community possessing qualities of a democratic institution in terms of composition, diversity and accountability. Legislature uses in-built procedures carefully designed and adopted to bring a plenitude of representations and resources as they have access to information, skills, expertise and knowledge of the people working within the institution and outside in the form of the executive. [ D. Kyritsis, "Constitutional Review in a Representative Democracy", (2012) 32 Oxford Journal of Legal Studies.] Process and method of legislation and judicial adjudication are entirely distinct. Judicial adjudication involves applying rules of interpretation and law of precedents and notwithstanding the deep understanding, knowledge and wisdom of an individual Judge or the Bench, it cannot be equated with law- making in a democratic society by legislators given their wider and broader diverse polity. The Constitution states that the legislature is supreme and has a final say in matters of legislation when it reflects on alternatives and choices with inputs from different quarters, with a check in the form of democratic accountability and a further check by the courts which exercise the power of judicial 30 ( 2024:HHC:9849 ) review. It is not for the Judges to seek to develop new all- embracing principles of law in a way that reflects the stance and opinion of the individual Judges when the society/legislators as a whole are unclear and substantially divided on the relevant issues [ Lord Browne-Wilkinson in Airedale N.H.S. Trust v. Bland, 1993 AC 789, pp. 879-880 : (1993) 2 WLR 316 (HL)]. In Bhim Singh v. Union of India [Bhim Singh v. Union of India, (2010) 5 SCC 538], while observing that the Constitution does not strictly prohibit overlapping of functions as this is inevitable in the modern parliamentary democracy, the Constitution prohibits t exercise of functions of another branch which results in wresting away of the regime of constitutional accountability. Only when accountability is preserved, there will be no violation of the principle of separation of powers. The constitution not only requires and mandates that there should be right decisions that govern us, but equal care has to be taken that the right decisions are made by the right body and the institution. This is what gives legitimacy, be it legislation, a policy decision or a court adjudication.
27. It is sometimes contended with force that unpopular and difficult decisions are more easily grasped and taken by the Judges rather than by the other two wings. Indeed, such suggestions were indirectly made. This reasoning is predicated on the belief that the Judges are not directly accountable to the electorate and, therefore, enjoy the relative freedom from questions of the moment, which enables them to take a detached, fair and just view. [ See observations of Lord Neuberger in R. (Nicklinson) v. Ministry of Justice, 2015 AC 657 : (2014) 3 WLR 200: 2014 UKSC 38] The position that Judges are not elected and accountable is correct, but this would not justify an order by a court in the nature of judicial legislation for it will run afoul of the constitutional supremacy and invalidate and subvert the democratic process by which legislations are enacted. For the reasons 31 ( 2024:HHC:9849 ) stated above, this reasoning is constitutionally unacceptable and untenable.
28. Dipak Misra, C.J. in the Kalpana Mehta case [Kalpana Mehta v. Union of India, (2018) 7 SCC 1], under the heading "Power of judicial review" had examined several judgments of this Court to reflect upon the impressive expanse of judicial power in the superior courts that requires and demands the exercise of tremendous responsibility by the courts. Thus, while exercising the interpretative power, the courts can draw strength from the spirit and propelling elements underlying the Constitution to realise the constitutional values but must remain alive to the concept of judicial restraint which requires the Judges to decide cases within defined limits of power. Thus, the courts would not accept submissions and pass orders purely on a matter of policy or formulate judicial legislation which is for the executive or elected representatives of the people to enact. Reference was made to some judgments of this Court in the following words: (Kalpana Mehta case [Kalpana Mehta v. Union of India, (2018) 7 SCC 1], SCC pp. 47-48, para 43) "43. In S.C. Chandra v. State of Jharkhand [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897: 2 SCEC 943], it has been ruled that the judiciary should exercise restraint and ordinarily should not encroach into the legislative domain. In this regard, a reference to a three-judge Bench decision in Suresh Seth v. Municipal Corpn., Indore [Suresh Seth v. Municipal Corpn., Indore, (2005) 13 SCC 287] is quite instructive. In the said case, a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956. Repelling the submission, the Court held that it is purely a matter of policy which is for the elected representatives of the people to decide and no directions can be issued by the Court in this regard. The Court further observed that this Court cannot issue directions to the legislature to make any 32 ( 2024:HHC:9849 ) particular kind of enactment. In this context, the Court held that under our constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact law and no outside power or authority can issue a direction to enact a particular kind of legislation. While so holding, the Court referred to the decision in Supreme Court Employees' Welfare Assn. v. Union of India [Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187: 1989 SCC (L&S) 569] wherein it was held that no court can direct a legislature to enact a particular law and similarly when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated authority."
13. If the Indian Forest Act provides for compensation and the government deems it fit to compound the offences, it is the choice of the government. Similarly, if the H.P. Land Preservation Act also provides for compensation and the Government decides not to compound it, again it is the choice of the government. The legislature in its wisdom is free to make a decision and if the decision is arbitrary or irrational the remedy lies by challenging the constitutionality of the same but as long as the legislation exists in the statute book, this Court is bound to enforce the same. Thus, it is not permissible for this Court to say that since the notification issued under Section 68 of the Indian Forest Act treats forest offences under Indian Forest Act 33 ( 2024:HHC:9849 ) differently from the forest offences under the H.P. Land Preservation Act; therefore, it will not give effect to them. The Court is not examining the vires of the notification of the constitutional validity of Section 68 of the Indian Forest Act and Section 19 of the H.P. Land Preservation Act, therefore, nothing remains to be said on this matter.
14. Thus, the main submission on behalf of the petitioners/accused that no complaint could have been filed against them because their case was covered under the notification dated 05.05.2010 is not acceptable because this notification does not apply to the forest offences under the H.P Land Preservation Act.
15. It was submitted that as per notification dated 10.09.2002, the owner can cut five trees of Cheel and since there are more than twenty co-owners, therefore, they can cut hundred trees and the act of the accused is not punishable. This submission cannot be accepted. The notification dated 10.09.2002 reads that the owners may for their bonafide domestic and agricultural use fell five pine trees without permission. The notification uses the term 'owners' and not 34 ( 2024:HHC:9849 ) 'owner' which means that all the owners together can cut five trees. Therefore, the submission that an owner cut five trees and 20 co-owners can cut hundred trees is not acceptable. The owner or the owners (as the case may be) can only cut five trees in a year and not more than that irrespective of their numbers.
Hence the submission that no case is made out because the number of co-owners in the present case is twenty cannot be accepted.
16. It was submitted that the State has impleaded only some of the co-owners and not all of them which is not permissible. This submission cannot be accepted. Para two of the complaint clearly mentions that the accused were warned not to indulge in any such activity and despite the warning, they continued to fell more trees. Para 3 stated that 35 Cheel/Pine trees illegally fell on the land owned by the respondent/co-
owners. Hence, specific allegations have been made against the accused. The truthfulness or otherwise of these allegations would be seen at the time of the conclusion of the trial and not at this stage. These allegations are to be taken as correct at this stage and the submission that the prosecution cannot continue 35 ( 2024:HHC:9849 ) against the present accused without impleading the other co-
accused is not acceptable.
17. No other point was urged.
18. The allegations in the complaint clearly show that 35 trees were cut which prima facie constitute the commission of an offence punishable under Section 16 read with Section 4 of H.P. Land Preservation Act. Hence, the complaint cannot be quashed.
19. In view of the above the present petition fails and is dismissed.
20. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.
21. Pending application(s), if any, also stand(s) disposed of.
22. Registry is directed to transmit the records of the case to the learned Trial Court forthwith.
(Rakesh Kainthla) Judge 17th October, 2024 (Nikita) Digitally signed by KARAN SINGH GULERIA Date: 2024.10.17 20:13:12