DIFFERENCE BETWEEN ARTICLE 226 AND ARTICLE 227 OF THE CONSTITUTION OF INDIA

DIFFERENCE BETWEEN ARTICLE 226 AND ARTICLE 227 OF THE CONSTITUTION OF INDIA

This Article primarily focuses on the difference between Article 226 and 227 of the Constitution of India. Looking carefully at both these Articles, both the Articles appear overlapping, whereas comprehending pragmatically both the Articles are very different and highly distinguishable. While drafting the writ petition, Advocates in general, caption the writ petition under Article 226 or 227 of the Constitution of India. Though, this practice has been deprecated by various High Courts and Supreme Court as both the Articles have a stark difference. Supreme Court and High Courts have time and again enlightened the difference between these two Articles. The Hon’ble Supreme Court vide its judgment passed in Surya Devi Rai Vs Ram Chander Rai had categorically explained as to what is Article 226 and 227. The Hon’ble Supreme Court had broadly differentiated Article 226 and 227 as follows:-  

1.   JURISDICTION

The High Court under Article 226 exercises original jurisdiction. Thus, the High Court while exercising its power under Article 226 has original Jurisdiction, whereas, under Article 227, the High court Exercises Supervisory jurisdiction which is akin to revisional or corrective jurisdiction.

2.   WRIT REMEDY

Under Article 226, the High court while exercising its original jurisdiction may simply annul or quash the proceedings and do no more. Whereas, under Article 227 the High Court while exercising its Supervisory jurisdiction will not only quash or set aside the impugned proceedings but will also make such directions as the facts and circumstances of the case may warrant, may be by the way of guiding the inferior Court or Tribunal.

3.   RELIEF

Article 226 is capable of being exercised on a prayer made on behalf of the aggrieved party. The supervisory jurisdiction under Article 227 is capable of being exercised suo motu as well.

CONCLUSION

TO SUM UP, The application of Article 226 and 227 depends highly upon the relief claimed by the aggrieved Party. It is well settled that Article 227 must be sparingly used as it is exercises corrective and supervisory Jurisdiction. Thus, Article 226 and 227 being very different in nature, therefore application should be applied accordingly.

   REFERENCE 

 https://indiankanoon.org/doc/1016548/

COMMON INTENTION - A SIMPLE OVERVIEW

* Section 34 to 38 are interwoven and elucidate the principles which govern the joint liability.

*Section 34 explains about the joint liability including common intention.

*Section 34 reads as " When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention"

* Section 34 discourages group criminals.

* Section 34 is mainly intended to meet where it is difficult to distinguish between the acts of the individual members of the party who act in furtherance of common intention of all or prove what part was taken by each of them in committing the offence.

*For common intention of the accused persons their active participation must be proved .

*Overt act however small is the prerequisite of section 34

*To attract the provisions of section 34 it requires that the act must have been a prearranged plan, and prior meeting of mind must have taken place.

* In furtherance to common intention of all implies the recognition of preliminary acts or the necessary acts which are essential to the commission of offence.

* Section 34 does not form a distinct offence.

*Section 34 is a rule of evidence as it is inferred from facts and circumstances.

* The question of compounding does not come into question as section 34 does not create a distinct offence.

Maitreyi

A SHORT NOTE ON ABETMENT

1) Abetment in literal sense means to urge,goad or instigate a person. Abetment is usually referred in a negative sense and usually connotes crime.

2) Section 107 of the Indian Penal Code states that abetment could be done through either of the following ways:

=> Instigation 107(1)

=> Conspiracy 107(2)
=> Intentionally aiding 107(3)

3) Abetment is placed under the category of Inchoate crimes.
4) The person who commits the crime is known as the principal offender or the perpetrator.

5) Discharge of the perpetrator does not discharge the criminal liability of the abettor.

6) The offence of abetment is complete as soon as the abettor instigated, aided, assisted the offender to commit the offence.

7) It is not mandatory that the offence of abetment be complete by an overt act.

8) Mere advice does not constitute the offence of abetment. The advice must have sufficiently supported or stimulated the offender.

9) Instigation could also be through letters. The offence of abetment is complete as soon as the letter comes to the knowledge of addressee.

10) If it does not reach the addressee then the abettor is considered to have attempted to abet.

11) Section 120 A of the Indian Penal code provisions the definition of conspiracy. Under section 120 A a mere agreement is enough for an offence however U/S 107 (2) a mere agreement and combination of people is not sufficient an illegal act or omission must take place.

12) In order to charge abetment by conspiracy the prosecution has to prove the following
=> That there were more than 2 person who have conspired
=> That they did an act/ omission in fulfillment of conspiracy.

13) Abetment by aiding could be facilitated in the following three ways :
=> Intentionally aiding
=> by illegal omission
=> by facilitating the commission of offence.

14) What is facilitating ?
Facilitation is providing facility for the commission of the intended offence, which is of atmost necessity for the commission of offence.

15) The explanation appended to section 108 are meant to eliminate any possibility of misrepresentation with respect to the offence of abetment.

16) Abetment of illegal omission is an offence(Explanation 1)

17) Abetted act need not be committed(Explanation 2)

18) Principal offender need not have the same guilty intention as the abettor(Explanation 3)

19) Abetment is an offence but abetment of an abetment is also an offence.(Explanation 4)

20) It is not necessary that the abettor concerts in the conspiracy it is sufficient if he engages in conspiracy(Explanation 5)

Maitreyi

THE WRIT OF CERTIORARI

(Pronounced as Sir-chee-oh-Rah-ree)

1. Certiorari is a Latin term which means “to Certify”.
2. The writ of certiorari is issued both in Civil as well the Criminal proceedings.
3. The writ of certiorari is a judicial order issued by the Supreme Court under Article 32 and the High Court under Article 226.
4. This writ is issued to inferior courts, and authorities exercising judicial and quasi judicial functions.
5. The writ of certiorari has expanded its horizon and nowadays issued for administrative actions also. In A.K Kraipak v Union of India this writ was issued to quash the administrative actions of the selection board.
6. This writ can be issued to a person, or statutory or non statutory bodies, which act in judicial, quasi judicial or administrative capacity which affect the rights of a person.
7. The writ of certiorari is corrective in nature unlike prohibition which is preventative in nature.
8. Lord Atkin in R v Electricity commissioners observed the following conditions that need to be fulfilled for a writ of certiorari
a) A body of persons;
b) Having legal authority;
c) to determine the rights of the subjects;
d) Having the duty to act judicially;
e) Acts in excess of authority
9. The writ of certiorari can be issued under the following conditions :-
a) When the Judicial or the quasi judicial authority has acted in excess jurisdiction, failed to exercise the jurisdiction vested to it by law, or has acted without jurisdiction.
b) When the authority is said to have abused its power.
c) When the authority assumes it jurisdiction by issuing an order without valuing the” jurisdictional “or the “Collateral” facts which are the condition precedent to be determined.
d) When the error of law is apparent on the face of the record and the authority issues an order which is apparently erroneous and embarrasses the system.
e) Violates the principle of natural justice. By granting orders based on personal bias, pecuniary bias, departmental bias, policy bias or evading the rule of audi alterem partem.
10. The writ of certiorari always acts in a supervisory capacity and not in an appellate capacity.

Maitreyi

LAW OF SEDITION IN INDIA

In this article i will dissect the contents of the section 124-A and create a question answer format to help you comprehend the section and also the law better. So, why wait, let’s begin the drill.

Section 124A lays down the provision with respect to Sedition. It states as:

"Whoever by words either spoken or written, or by signs, or visible representation, or otherwise brings or attempts to bring any hatred or contempt, excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added or both"

What is Sedition in simple terms?

Sedition very simply could be explained as defamation of the state.

In which ways disaffection against the Government is instigated?

Hatred, contempt, ill will, feeling of enmity and disaffection towards the government could be instigated by the following ways

=>Words either (spoken or written),
=> Signs,and
=>Visible representations

These could be in the form of poetry, drama, songs, discourses, etc., and visible representation denotes the form of communication which is visible to the eyes. However, all of these must be published. Under the law of Sedition the word publication altogether connotes a different meaning. Publication under section 124A denotes communication of matters to others.

What is meant by disaffection?

Disaffection is the opposite of affection. The act of igniting disaffection means instigating the feelings of hatred, ill will, contempt, disloyalty and bad feelings towards the Government established by law. Explanation I provides that the expression “disaffection’ includes DISLOYALTY and all the feelings of ENMITY.

What is the meaning of Government established by Law?

Government established by law includes both the Central Government and State Government.

What does attempt imply here?

Attempt under section 124A of IPC denotes bringing or attempting to bring hatred or contempt towards the Government established by law in India. It is immaterial whether such attempt concludes into a successful venture or not. However, the success or failure of such attempts is taken into account while calculating the quantum of punishment.

When can the provisions of this section be invoked?

The provisions of this section do not prohibit anyone from discussing political matters and the political conditions currently existing in the country. This section comes into play when it crosses the threshold limit and leads to a conducive environment to bring disaffection and hatred towards the Government irrespective of it invoking any disruption in the public order or not. In Balwant Singh v State of Punjab the Hon’ble Supreme court had ruled that casual slogans once or twice raised by two individuals, cannot be said to be aimed at exciting or attempting to execute hatred or disaffection towards the Government established by law. The court also reprimanded the police for “reading too much” into the slogans which showed their lack of maturity and sensitivity in arresting the two Government servants.

Is Section 124A in contravention to Article 19(1) (a)[ freedom of speech and expression] as enshrined in the Indian Constitution?

The answer is NO. This section is enshrined on the account of reasonable restriction as provided under Article 19(2) with respect to maintaining public order. Words which incite violence or have tendency to create public disorder or is likely to create public disorder or provide reasonable apprehension thereof need to be condemned .

Hope this helps:)

Maitreyi

VERY IMPORTANT POINTS ABOUT DEFAMATION

1. Defamation is both a Civil and a Criminal Wrong.
2. Chapter XXI of The Indian Penal Code deals with defamation.
3. In the Indian Penal Code defamation is defined u/s 499 and the punishment is mentioned u/s 500.
4. In India defamation could be by words spoken or written unlike English law where words spoken do not amount to the offence of defamation
5. Imputation could be by words spoken or intended to be read, signs and visible representations.
6. The imputation must be made or published against a person or persons concerned.
7. The imputation must be made with an intention or knowledge or belief that the imputation is likely to harm the reputation of the other person.
8. An imputation is said to be made by composing, dictating, writing or contributing in any other way.
9. An imputation is said to be published when it comes to the knowledge of the third person.
10. When the publication is written or in permanent form it is known as Libel
11. Publication of words spoken or the gestures made is slander.
12. Publication is an essential ingredient of defamation.
13. Character of a person denotes what that person “actually is” and reputation denotes “others opinion” about a person.
14. Defamation is always concerned with reputation.
15. Imputation could be made against a single person, a firm, an association or a body of individuals.
16. Words of common use such a Idiot, scoundrel, lafanga,nalayak badmash which do not convey a definite imputation are not defamatory.
17. Indirect imputations are also known as innuendo.
18. Privileged communication between Husband and Wife, lawyer and is client etc., are not publication therefore do not come under the ambit of defamation.
19. When a defamatory statement is published not only is the writer liable but also the editor, publisher, and distributor liable under section 500 of the Indian Penal Code. Therefore, they cannot seek the protection as to their unawareness of the contents being defamatory in nature.
20. There are 10 exceptions provided under section 499 of the Indian Penal code which could be used as a defence.
21. Defamation is punishable with an imprisonment with can extend upto a term of 2 years or with fine or both.
22. It is to be noted that defamation is punishable only with simple imprisonment.
23. The quantum of punishment is decided as per the facts and circumstances of the case and the extent to which the imputation adversely affected the complainant.
24. Section 501 makes a distinct offence. It makes abetment of defamation a distinct and a separate offence and a person printing or engraving defamatory matter is liable to be punished under this section.
25. Section 502 is supplemental to section 501 which make sale of printed or engraved defamatory content punishable.

I hope this write up helps you all in making notes for the exam and also quote a few important points in Mains to get better marks.

Maitreyi Raghuraman

OPINION OF THIRD PERSON WHEN RELEVAN

As per general rule the opinions of the third person are irrelevant and therefore inadmissible. In certain cases when the court is unable to form correct opinion because of the requirement of specialized knowledge or lack of experience in ascertaining the same then in these cases the opinion of the expert is admitted to enable the court to decide the case.

Section 45 to 50 of the Indian Evidence Act deals with the provisions as to when the opinion of the third person shall be relevant.

As per section 45 if the court has to form an opinion as to any foreign law, science, art ,the identity of handwriting or finger impression then opinion on the point by the person specially skilled shall be relevant.It is very crucial to be considered here that the opinions of the experts exhibit weaker form of evidences and sole reliance on the same is apprehended as it is subject to prejudice, incompetence and corruption.Therefore, it should not be acted upon unless substantially corroborated.As there exist apprehension to its certainty the evidence derived from an expert opinion is examined before court and also subject to cross - examination.

What is the value of opinion derived from hand writing expert?

Similarly the opinions of the handwriting experts are the least reliable.It has also been held that it is not safe to convict a person on the basis of the opinion derived from writing alone.However, section 47 of the Act provides that opinion of a third person acquainted with the handwriting of the other shall be relevant. Following are the persons who are considered competent to testify under this section
=>The person who has seen the person write.
=>Received documents purporting to be written by him.
=>Documents purporting to be written by the person in ordinary course of business or being habitually submitted to him.

What are the different modes of proving handwriting ?

The different modes of proving hand writing under this Act are as follows

1) Evidence by the writer himself
2) Opinions of the expert (Section 45)
3) Opinions of the persons acquainted with the handwriting of the other person (section 47)
4) Comparison of the handwriting by the court itself(section 73)

What is the value of facts which are otherwise not relevant but such opinions of the expert become relevant ?

When a fact which either supports or is inconsistent with the opinion of the expert, with respect to a fact which otherwise is not relevant to the issue ,then such an opinion becomes relevant.This is given under section 46 of the Act. For eg:- The opinion of an expert as to the symptoms of poison experienced by others after its consumption be it in affirmation or denial with respect to the case is relevant.

When are the opinion on relation relevant?

This provision has been enshrined under section 50 of the Act.In this section the opinion of the person alive is relevant and it must have been expressed by conduct and not merely by words or statements. This section must be read with section 32 (5) and 32(6) which provide the relevancy of the statement made by a dead person. The relationship in such cases must have been attained by blood, adoption or marriage.However the exception to section 50 are section 494.495,497 and 498 of IPC and also the proceedings under the Indian Divorce Act, where the evidence of marriage cannot be given by opinion of an expert.Strict proof of marriage is necessary in these cases.

Apart from these there are also certain opinions which are relevant. They are as follows :

=> Opinion as to digital signature by the certifying authority who has issued the Certificate is relevant (Section 47A)
=>Opinions as to any general customs and rights by the person who would be likely to know its existence if it existed is relevant.(Section 48)
=> Usages and tenets of any body of men or family,the constitution of any Government or charitable foundation, or the term used in particular district, particular classes , the person having special means of knowledge thereon is relevant.(Section 49)

Hope this was helpful.

Maitreyi