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    i” = = OUTLINES OF INDIAN SEGAL eIgTORY ERTENSIUN OF Tek COURT'S JURISDIETLON The limits of the teititerial jutiedietion of the Supreme Cinrt came to be extended in 180. ‘The Company acquied Benaces and olticr tersitories fom the Nawab Vizier of Oudh. By an Act, 3 and go Geo. TH, e.79,8.20, paseed by the British Parliament in 1800, the jurisdiction of the Supreme Court was exlended to Benaras and to all Tactories, districts and places subject to the Presidency of Fort Willem in Bengal. CHAPTER VHI SUPREME COURTS AT BOMBAY AND MADRAS mvrRopucroRt In the presidency towns of Bombay and Madras, the judi- clal system, inaugurated by the Charter of George HI in 1753, continued in operation for a longer period han it did at Caloutta, Ip course of time, it was realised that the existing courts, civil as well as criminal, were utterly inadequate to discharge effectively the important function of administering justice. The population, trade and commerce of these places increased considerably, Comparatively mote technical, intei- cate and complicated ismues and causes began to come before the Mayors’ Courts for decision, and so, it was thought ta be desirable to appoint qualified and trained lawyere as Judges. The Governor and Council at each presidency town formed the Criminal Court of Oyer and Terminer and Gaol Delivery. They also were lay persons, not being very well versed in crimi- nal law and procedure, ‘The nature of criminal cases coming before thern far decision had changed since 1753. They became more technica! and complicated than what they used to be earliec, Foran efficient administeation of criminal justice also, it was expedient to have persons who by their training, quali- fications and egal knowledge might be more suited to be Judges, and be sble to discharge the arduous judicial functions more efficiently. Non-lawyers as Judges in the Courts appeared to be an anachzonism in view of the changed context, It was ‘but absolutely necessary to have professional lawyers ag Judges, In 1797, therefore, to reform the existing judicial systems in Bombay and Medras presidencies, the British Parliament, passed on Act* authorising the Crown to supersede the judicial arrangements of 1763 and establish the Recorders’ Courts instead THE RECORDERS’ COURTS. _ Each of the Recorders’ Courts consisted of the Mayor, 1, 37Goo. Hl, Cap, 1a. Tab QUTLONES OF miptaw LEGAL HISTORY thee Aldeemen and a Recorder. ‘The Recorder was to be appwinted by His Mudesty. ‘The Recorder was to be a lawyer of not fens than five years! standing. He was to be the President of the Court. The Recorder's Court was to bea court of record. Ié was to have full power and authority to exercise and perform all Civil, Criminal, Eoclesinstical, and Admiralty jurisdiction. ‘The jurisdiction, powers and authority ta be conferred on the Recorder's Court by the Royal Charter to be isnued by the Crown in pursanee of the Act of 1797, were to be on lines stoullar to those of the Supreme Court of Judicature at Cal- cutie, Like the Supreme Court at Caleutta, the Recorder's Court was to bea Court of Oyer and Terminer and Gaol Delivery for the respective settlement. é ‘The jurisdiction of the Recorder's Court was to extend ower the British subjects, resident within the tervitories of the respective settlement es well as those residing in the territory ‘of native Princes in alliance with the government. The Re- corder’s Court was authorised to hear and determine all com- pisinta against any of His Majesty's subjects for any crime, misdemeinoue amd oppression committed by them, oc any suitor action against them. The Recorder's Court was to venercise jurisdiction an any person, who was employed by, oF was directly or indirectly in the seruice of, the Company or any of His Majesty's subjects. All the testrictions imposed on the Supreme Court of Judicature at Fort Willigm by means of the Act of Settlement of x7Be, were also extended to the Recorder's Court, Accord. ingly, the Recorder's Court weg not to have any: juriediction or authority in any matter concerning revenue. No person ‘was subject to dts jurisdiction by reason of his being a landow- er, landholder, or farmer of tand revenue. The Governor and Council of the settlement was to be dremune from errest. No action against them, either individually or collectively, could be entertained by the [Recarder's Court for anything dane by them in their public capacity, 122 SUPREME COURTS AT BOMUAY AND MADRAS Each of the Recorders’ Courts was to have full power and authority to hear and determine all uits or actions that might be brought against the inhabitants of each ef the respective presidency towns of Bombay and Madris in matters of succession and inkeritancs and mattors of contract hhotween patty and pavty, the Recorder's Court, like the Supreme Court at Calcutta, was to administer Hindu Lavo to the Findus, Mehammedan Law to the Muslims, and the lawof the defendans if partios belonged to diferent voligfous pursuasions. No action for wrong or injury was to be entertained against a person exercising a judicial office in x court in the country. ‘The juris- diction of the Recorder's Court in this bebalf was to be the same as that of the Calcutta Supreme Court. ‘Appeals from the decisions of the Recorder's Court were to lie to the King in Council, practically on the same basis as the appeals from the Supreme Court at Calcutta * ‘The Recorder's Court sbsosbed into itself the Mayor's Court and the Court of the Oyer and Terminer and Gaol Delivery consisting of the Governor and Council in each of the two settlements, COURTS OF REQUESTS ‘The Act of 1297 made an important change in the juris diction of the Courts of Requests existing in the three presi- dency towns. of Calcutta, Madras and Bombay under the ‘Charter of 1783". ‘The process of these Courts had been found to be very convenient and beneficial for the decision of petty elvil suits, The Charter of 1733 had fixed the juris- diction of these Courts at five pagodas. The Actof 1797 extended their jurisdiction to eighty rupees. RECORDER'S COURT V, MAYOR'S COURT In pursuance of the Act of 1797, George III, King of England, ised Charters establishing Recorders’ Courts at Bombay and Madras presidency towns, ‘The Chartets were 1 See Page 49+ ‘133 Sa ee eet 2 i s real sagen (OUTLINES OF INDTAN LEGAL HIsToRY issued on Febricary 1, 1708; the terms: and conditions, can- tained therein, and the powers end jurisdiction conferred by them an the Recorders’ Courts, were on lines prescribed by the Act af 1997, which were. similar to the Supreme Court of Judicature st Fort William under its Charter of Justice, the Regulating Act and the Act of Settlement 2781, From the pint of view of composition, the Recorder's Churt was the old Mayor's: Court with the addition of a lawyes, asthe Recorder, to be appointed by the Grown, ‘The Mayer's Couit consisted of Judges who were entirely ignorant of law or legul procedure. These lay Judges were not in a position tu Jmmdle effectively the technical and delicale legal problems that constantly arose due to the espinsion and development ‘of the presideney towns. [i had become essential te introduce some logal element in the Mayer's Court, aid it wasasa consequence of this realization that the Recurders’ Courts at the two-settiements had been created. A Recorder's Court, due to the presence of a professional hiwyer, was a much more effective insteument of justice than ite predecessor the Mayor's Court Bexides, the Recorier's Court differed in some important respects from the Mayor's Court. The Recorder's Coust was a court of eivit as well as criminal jurisdiction ; the Mayor's Cautrt was a court of civil jurisdiction only, An appeal from the. Mayor's Court ly t the Governor and Council & further appeal from the Governor and Council, in all cages beyond ro00 pagerdas, lay to the King in Council, Appeals fram the decisions of the Reeorder’s Court, on the other hand, lay dizectly i the King in Council in all cases above roge pagodas, There was no intermediary court of appeal between the Recorder's Court and the King in Council. No decision of the Mayor's Court was final, aaan appeal in every case could be made to the Governor and Council. But the decisions of the Recotder’s Cauct in cases valuing less that tooo pagodas were Snal. The Charter of 1753 fad exémpled suits “among the aa SUPREME COURTS AT BOMBAY AND MADRAS natives from the jurisdiction of the Mayor's Court. Tt could take cognisince of such. sults only when placed before tt vo luntarily by both the parties. The Recorder's Court suffered from no auch restriction. It was empowered to take into cognii- sance all kinds of suits and disputes arising emong the residents of the presicleney town ‘The Mayor's Court was supposed to be a court of English Lew. It waa expected to apply this law even to the natives, How far it could really apply English Law in the absence of any professional aid, is u difficult question te answer, The Recavder's Court, however, due to the presence ofan English lawyer as a Judge, was better able ta apply English Law. But then the Recorder's Court was not purely a Court of English Law, it having been directed to apply Bindu Taw and Mofiammedian Law in cerlain cases. THE SUPREME COURT aT scaDKas The Recorder's Court at Madme did not enjoy a very long span of life. Jn oo, the British Porliament passed an Act authorising the Crown to akolish the Recorder's Court and erect a Supreme Court of Judicature in its stead by a Royal Charter. The powern vested in the Recorder's Court were transferred to the Supreme Court, which was to exercise the same jurisdiction and pacers, subject to tke same. restrictions, as the Supreme Court of Judicature at Fort William in Bengal, The Letters Patent granting the Charter of Justice to the Supreme Court at Madras were fasted by King George Tf on the 26th December, 1Bot. ‘The Supreme Court was to enjoy Civil, Criminal, Admiralty and Eectesiastical jurisdiction on the same basis aa the Supreme Court of Judicature at Caleutta. TNE SUPREME COURT AT BOMBAY ‘The Retorder's Court at Bombay functioned for a longer perlad than its counterpart at Madras, Ultimately, an Act passed in 1823, during the reign of George IV, authorised the English Crown to abolish the Recorder’s Court at Bombay and establich a Supreme Court of Judicature in its place. The ize SS ee AU Pap Ee pepe epee ' f & Teeny OUTLINES OF THRTAN LEGAT EROTORY Supreme Court of Judiesture at Bambay was to consist of the samme nuniber af Judges as the Supreme Court of Fort William ia Bengal. It wos to be invested with the same powers and authoriltes as the Supreme Court of Judicature st Fort William, with a similir jurisdiction and powers, and subject to the sume limitations, restrictions and control. ‘The powers of the Supreme Courts at Madras and ‘Bombay were placed on an equal footing with those of the Supreme Court at Caloutta, ia an explicit inanner by the 17th section of the Act of 1823, which declared that it should be iewful forthe Supreme Court of Judicature at Madras, and the Supreme Court of Judicature at Bombay, within their res- pective territorisl jurisdiction, to da, execute, perform, and fulfil, all euch acts, authority, duties, matters and things what- spever, as the Supreme Court of Judicature et Fort William was or might be authorised, empowered, or directed to do, exe- eute, perform, and fulfl within the factory of Fort Willians ip Bengal or places subject to or dependent upon the Government thereof. ‘The Letter Patent granting a Charter of Justice to the Supreme Court of Bombay weve issued by the Crown on 8th December, 1823. By the first. quarter of the roth century, therefore, there wore established three Supreme Courts of Judicature in the three presidency towns of Calcutta, Bomboy and Madras, more or less on a uniform basis, CONFLICT IN EOMRAY Within a very short time of its creation, the Supreme ‘Court cf Bombay came into conflict with the Government, which though ot so serious was yet reminiscent of the conflicts arising in Bengal during ap7q—~p9. ‘The conflict in Bombay was the result of the Supreme Court issuing cartain ‘write of Habees Corps to certain petsons beyond the Boribey town. ‘The first case was that of Mose Raghonath, a boy who was 136 SUPREME COURTS AT DOMBAY AIND SADRAS detained for over a year and, as was stated, under circum- stances of great hardship and cruelty, by his grandfather, Pandurany Ramchander, residing at Poona. A relative of the boy moved the Supreme Court for the iesue of the writ of Habess Corpus on agth August 1828 The motion was opposed by the Advocute General on the ground that Ram~ chandler and Raghonath were natives residing at Poona and so were not amenable to the jurisdiction of the Supreme Court, ‘The Court overruled the objection and erdered the issue of ‘the writ. The other was the case of Bappoo Gunness, whe was detained in custody by virtue of an order of the Adalat Court of Concan, Having been found guiky of embezzlement he had been sentenced to two years’ imprisonment and a fine of Rs. asc. The Suipreme Court issued the writ of Habeas Corpus to the Gaoler, The Governor and Council of Bombay forbade a return heing made to any of the writs. Consequent on this opposition from the Government to its procese, the Supreme Court of Judieature, on first April 1829, declared that it had ceased on all its sides, and that it would perform none of its functions until the Court teceived an assurance that its authority would be respected, and ite process obeyed and seedered effectual by the Gavernment of the Presidency. ‘The Judge of the Supreme Court, Sir Peter Grant—he being the only surviving Judge, the other two having died— made a petition to His Majesty against this intrusion of the ‘Government and prayed Hiz Majesty ‘to give such commands concerning the same ag te His Royal Majesty's wisdom should seem meet, for the due vindication and protection of the dignity and lawful authority of His Majesty's Supreme Court of Judicature at Bombay.’ ‘The premises in the petition came in for discussion and consideration before the Privy Council.! The report of the Privy Council, which was sffirmed by His Majesty, was —- In Re The Justices of the Supreme Court of Judicature. «Knapp. P.G, 3, 12 ER, 223, . 127 OUTLINES OF INDIAN LEGAL HISTORY hat the writs of Hebeas Corpus were improperly jnised in the (wo cnaes referred to in the said petition. “Phat the Supreme Court has no power or authority to issue a writ of Habeas Corpus except when directed either to those local limita wherein such a person tesident —withi Court bas 2 general juciudiction, or to 1 perten out of such loca! limite, who is petsonaily subject in the civil and criminal liction of the Supreme Court. i “phat the Supreme Court has ne power or authority to ‘asiea writ of Habeas Corpus to the gaoler or ofticer of @ native court as such officer, the Supreme Court having no pawer to diicharge perions imprisoned undee the authority of at native eaurt” “Thee the Supreme Court ig bound to notice the juris- dictian of the Native Court, without having the samme specially set forth in the return to a of Habeas Corpus.” The verdict of the Privy Council thue weat against the Supreme Court, RGTION AND LAWS ADMINISTERED. must ‘RE SUPREME couRTS—joRE ‘The Supreme Courts in the three presidencies had five distinct jurisdictions, Civil, Calaninal, Equity, Ecclesiastical aod ‘Adminity, ‘The jurisdiction of the Supteme Courts of Judicature, to state briefly, extended over the following categories of persons: 1, British subjects or His Majesty's. subjects, in all manttera civil and criminal ; 2, The inhabitants of Calcutta, Madras and Bombay presidency towns, whether natives or others, in all matters civil and criminal. The natives, in ame civil matters, were to shave justice administered to them according ta the Hindy or the Mohammedan Law, 4. Persons who were employed by, o were directly or indirectly in the service of, the Company or any British subject, 128 SUPREME COURTS AT BOMBAY AND MADRAS for ncts committed ag such. They were excluded from the civil jurisdiction except in matters of wrongs or torts, 4. Native subjects, in civil matters, for transactions ia which they had bound themselves to be amenable to the Supreme Court by an ogveemeat in writing. 5. All persons whetacever for crimes maritime. This ‘was the result of section 110 of the Charter Act of 1413. The ‘Company's Courts did net have any jurisdiction over crimes maritime, and there were doubts whether the Courts of the Crown could take cognisance of maritime crimes commitied by those pemons who were not otherwise subject to their ordinary jurisdiction, This doubt was removed in 113 and it was enacted that His Majesty's Courts at Calcutta, Madens and Bombay, exercising Admisalty jurisdiction would be authorised “to teke wognisance of all crimes perpetrated on the High Sees, by any person or persone whalanever, in és full and ample a manner as any other Court of Admiralty jurisdiction establi ed by His Majesty's authority whatsoever...,.. 2 The Law administered by the Supreme Courts at the three presidencies might be clussified under the tollowing seven distinct heads + 1. The Common Law as it prevailed is England in the year 1726, and which had aot been subsequently altered by Statutes, especially extending to India, or by the Acts of the Legislative Council of India. 2, The Statute Law which prevailed in England in 1736, and which hed not been subsequently altered by Statutes especially extending t India, or by the Acts of the Lepisiptive Couneil of India.” 3. The Stature Law expressly extending to India, enact- ed after 1726. 4. The Civil Lew as it obtained in the Ecclesiastical and Admiralty Courts in England. ‘According to the less! opinion, Et Jaw bad been introduced i {he three precidency towns in t7af See pages 8. —T 120 ” -foee OUTLINES OF INDIO LEGAL HISTORY 5. Regulations made by the Governor General in Coun cilund che Governors in Council under the powers conferred ‘on theat by the varios parligmentary enactments. After 1833, the Acts of the Legislative Council uf India. &. Hinds Low in actions regarding inheritance and succession to lands, rents, and goods, and all matters of cone twsct and dealing beeween party and party in which a Hindu way a defendant. >. Mobammedan Law in actions regacding inheritence ind succession to lands, sents, and goods, and all matters of camuact and dealing between party and partyin which a Mohammedan was a defendant. Tesmont be clearta every one that a system, which em- brnced the dispensation of so-many codes of law and the exer- cise of eo many jurisdictions, must be a complicated affair and the greatest difficulty must have stiended in bringing such a system (© perfection, In courte of time, however, a process of cadification of lawe started, which mitigated the complexity of the system of administration of justice, CHAPTER IX RE-ORGANISATION OF THE ADALAT SYSTEM IN BENGAL nereopucTorY ‘The Patna Cause had revealed that a Very unsatisfactory stale of affairs prevailed in the Company's Courts inthe mofus- sil of Bengal, Bihar and Orissa, The fuaction of administering justice was snainly discharged by six Provincial Councils, who werg algo responsible for the collection of revenue under the plan of 1774.! The Councils, ag 2 rule, devoted much of their time to the revenue work, They attached only aysecondary importance to the function of administering justice. The English gentlemen, composing these Councils, were ignorant of the native law, langage and customa and thug had little in- clination to execute their judicial fumetions in person, The Provincial Councils had left the task of deciding causes practi- cally ia the hands of the native law officers attached to them for the purpose of expounding the indigenous systems of law. The smanifuld defects and the essential weaknesses of the system had been betrayed ina very telling manner by the Patna Cause, asa result of which it had become very clear thet if people at large in the country were to have even a semblance of justice, then the system in epetation must he thoroughly overhauled and completely renovated. JUDICIAL scHEUE oF 1780 In 780, Warren Hastings, the Governor General, took upon himself the task of re-organising the Adalat System in the mofussil. He formulated a new plan, which was promulgated in that year. ‘The galient features of the new plan were :— In each of the six Divisions of Caleutta, Murshidabad, Burdwan, Dacca, Purnea and Patna, in which the three pro- vinces of Bengal, Bihar and Orisss, had been divided in r774°, a Court of Diwani Adalat, 9 court of civil jurisdiction, was te See page a 1 OUTLINES OF INDIAN LEGAL HISTORY established. Each of the sx mew Diwani Adalats was to be presided aver by an Englishman, acovenanted servant of the Company, He was w be known as the Superintendent of the Diwoni Adalat, ‘The six Provincial Councils established in the year 1774 inthe six Divisions, were continued. They were, however, diveuted of theie indicial functions, Afier 1780, the Praviticial Coimeils were to canfine themselue only to rouenue functions, viz, the collection of revenue in the respective Division as also deciding cases arising cut. of the revenue administration. The Councils were na longer to exercise anu judicial functions. ‘The juricdiction of the Superintendent of the Divani Adalat was tobe distinct from, and independent of, the Peo- ‘vincial Council of the Division. ‘The Diwani Adalat wiz empowered to decide all canses of a civil nature Tike inheritence, property, contact etc. ‘The Superintendent of Diwani Adalat could refer small cases, not exceeding one huadred rupees in value, to some zemin« dar or public officer residing sear the parties’ place of residence. The Court was to sit at least three times a week. ‘The Superintendent of the Adalat was to take an oath to ad- minister justice without fer or favour, ‘The Adalar was enjoined to keep regular and pioper records of all its proceed- ings. ‘As ueusl, in cated reyacding inberilance, marriage, caste aod other religious usages and institutions, the Adalat ras to administer the laws of Koren for the Muslims and the laws of the Shaster for the Hindys, ‘To expound thete indigenous syttems of law, with which the English fudge was unecquaint- ed, provision waa made for the native law offices, Muslim Kasia and Hindu Pendits, to attend the Court. Ali decisions of the Diwani Adalat were to he final in eases where the subject matler involved did not exceed one thousand rupees. Thereafter, an appeal Jay to the Sadar Divani Adalat situated of Caleutta and composed of the Governor General end Council, “102 ‘RE-ORGANISATION OF THE ADALAT SYSTEM HY BENGAL For the first time, the Government in 1786 levied court feet on the suitors. The scale uf fees varied with the , value of the subject matter involved ita particular suil, the maximum being s% and the minimum, 2%. MERITS AND DEFECTS OF THE SCHEME Under the Scheme of 1780, six Courts of Diwani Adalats came to be constituted in the provinces of Bengal, Bihar and. Orissa. The chief merit of the new judicial plan was the separation of the judicial from te executive Jimctions, The newly established Courts of Diwani Adalat were to be purely judicial tribunals, having no executive or revenue. funetions to dischatge, but desigred exclusively t0 administer justice in civil causes. The executive functions like the collection of revenue etc, were left in the hands of adistinct body, the Provincial Council of the Division. The two funetions—iudicial and ‘exe- cutive—thus came (o be vested in distinct hands, It was for the first time since the divect assumption of administration by the Company that such a bifuccition of functions was effected. Te waa a very wholesome change, for the frst requisite for a pure and efficient administration of justice ins country is. the separation of judiciary from the executive. The new Courts of Diwani Adalat were 19 devote the whole of their time to the jodicial work which was a great improvement ver the previous aystem of 1774 under which the Provincial Councils used to spend oaly # fraction of their time to judicial work as they were more interested in the revenue business. The new scheme was not, however, fee from blemishes ‘or faulg, Tis one piost conspicuous defect was the paueity of ‘Courts to administer justice in civil causes. In such a vast area as the three provinces of Bengal, Bihar and Orivsa, there were chly six Courts of Diwani Adalat. Each Adalat thus had very wide territotial jurisdiction, This put the people to great inconvenience and trouble, because they had ta travel long distances to reuch the Divisionil Headguarters—the seat of the Adalat—in search of justice in all disputes, simple or complex, petty or otherwise, This meant waste of time, energy and 133 ny OUTLINES OF INBIAN LDGAL HISTORY money on their part, Under these circumstances, many thought it prudent to forgo justice and suffer a wrong silently rather chon suffer tho great inconvenience involved in reaching, the Courts Tho judicial plan of r7Ha had endeavoured to solve these dilficulties by providing that cases, not exceeding Rs, roj/- in value, might be referred by the Superintendent af the Diwani Adalat to some zemindse or public officer vesiding near the place where the cause of action actually arose. But even this arrangement did tot afford any eubstantial relief to the poor people inen fir as they had to come, at least ance, lo the Divisional Headquarlees to fie the suits in the Adalat. It was only after the patties had taken this preliminary step that the Superintendent could refer the suit ta some authority near the portits! place of residence. In those days of inadequate means of comminication, it was ouble enough for the people to cover even for once the long distance fiom their residence to the seat of the Adalat, ‘Moreover, the zemindars to whom suits of small value were veferred for decision under thie arrangement, were to act ag honorary judges without receiving aay fee ar semuneration for their labours. ‘There was thus a danger of the zemindars misusing these judicial powers ta their own selfish ends. Such aaystem could hardly be effective and conducive ta. the pro- motion af fair and free justice in the country. What was needed in fact was a remilar cadve af propesly paid subordinate judiciat officers, heving thelr courts interspersed iH the interior af the county, But this war yet a very far-fetched dream. Further, the paucity of Courts under the scheme of 1780, placed a beawy strain and a great responsibility on each af the Superintendents of the Diwani Adalats. Each one of them had a large tertitorial area under his care. The number of

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