(Judicial & Administration system of Bengal)
Sheriff post was created in Bengal as an arm of Supreme Court but he faced many problems and severe oppositions from other judicial & administrative systems of Bengal during the implementation of the Supreme Court's orders. Few problems challenged the jurisdiction & powers of the Supreme Court. So it is essential to discuss about the different judicial & administrative systems of Bengal before & after 1774.
Part-IJudicial & Administrative systems in Bengal before 1774: The development of administration of justice in Calcutta, before the settlement in Calcutta of Job Charnock and his followers, there can have been few, if any, Europeans either in the Company or outside it to need in actual fact any administration of justice among them, and for the army or navy whether situated little or nothing would be needed beyond the administration of military law. In Calcutta in the years from 1686 or 1690 to 1694, when by the purchase of the three villages of Sutanati, Govindpur and Calcutta with the consent of the Nawab of Bengal, the East India Company acquired the status of the Zaminder, there can have been no courts in which British justice will administered and no need for any such courts, nor for any courts of the company at Calcutta at all. In the period after 1694 the East India Company appears to have taken such a part in the administration of justice, urged no doubt primarily by the need for steps for the collection of rent, as was usual for a Zaminder, holding Zamindar’s Courts, having both civil and criminal jurisdiction, but legally deriving authority solely from the Mogal power. As for the nature of law in so far as it was administered by the Company us Zaminder, this would natunjlly be the Indian law to which the people had been accustomed; from which the Company’s rights sprang. The procedure would also be the procedure usual in India in such Zamindari Courts, The language of those courts was Persian. There was no Crown Court either Civil or Criminal, and could not have been any, during that time either No regular court of Admiralty, either, was ever set up in Calcutta during the period preceding 1726.
Part-IIJudicial & administrative systems in Bengal after 1774 : On 26th March,1774, the Charter establishing the Supreme Court was issued in pursuance of the Act of 1773. The Mayor’s court was abolished, and the Supreme Court was set up. The Company’s courts remained entirely distinct and independent of the Crown’s Supreme Court. The law administered in the Supreme Court from the time of its establishment in 1774 was the same substantially as that which had been previously administered in the Mayor’s court. The passing of the Regulation Act of 1773, and the setting up of the Supreme Court had not affect the existence of the company’s courts, which continued to exercise their jurisdiction concurrently and independently.
Shortly after the grant of the Supreme Court charter unfortunate contentions arose between the Governor General in council and the Judges of the Supreme Court, which eventually resulted in the passing of the Act of Settlement of 1781. Conflict followed for seven years between the Supreme Court on the one hand and the Council and Courts of East India Company on the other.
The fault was primarily not with the Judges nor yet with the officers of the East India Company, but with the Legislators in Parliament who passed this piece of legislation of 1773 in such haste and in such ignorance. That did not make the results of the conflict the less disastrous.
The Cossijurah Case - The quarrel between the Supreme Court and the Council finally were brought to a crisis by the events connected with what was known as the Cossijurah Cause. For a vivid account of the facts of the case it seems impossible to better the account of the matter given by Sir James Fitzjames Stephen as follows-Cossinaut Baboo had lent a large sum of money to the Zaminder of Cossijurah,and had tried for a considerable time to get the money from him through the Calcutta Board of Revenue. As this process did not succeed to his wish, Cossinaut sued The Zeminder in the Supreme Court, filling on the 13lh August,1779, an affidavit which stated that the Zeminder was employed in the collection of the revenues. The collector of Midnapore, Mr.Peiarce, informed the Governor General in Council of this, and said that the Zeminder was concealing himself in order to avoid service of the writ, to the damage of the revenue which he ought to have been collecting. The Governor General and Council consulted the Advocate-General Sir John Day, and received from him a singular opinion, in which after a long preface to the effect that ‘we and our courts(ie those of the company) stand upon a problematical title and questionable ground, so far as relates to the rights of the natives’, he says that the question is,’ 'whether the few remaining rights of a people to whom we have left but little’, shall be invaded(ie, by the Supreme Court). He adds that the view taken by the Court of the Regulation Act is wrong, and he says,’ 'I advise that in the case now referred to, the Zemindar have notice that not being subject to the Jurisdiction(ie of the Supreme Court) he shall not appear, or plead, or do or suffer any act which may amount on his part to a recognition of authority of the judicature as extending to himself.’
An order is stated by Impey to have been issued (ie by the company) to all landholders to inform them that they were subject to the jurisdiction of the court (ie the Supreme Court) only if they were servants of the company or had subjected themselves by their own consent to the jurisdiction, and if they did not (apparently in their own opinion) fall within either class they were to pay no attention to the process of the court. Impey comments on the terms of this proclamation, which he says were intentionally disrespectful both to the court and to the King, who is called ’the English King’ without any title, the object being as Impey suggests, to avoid conveying the notion that the King of England had any authority as King in Bengal. Basidcs this general proclamation a special direction to the same effect was given to the Zemindar of Cossijurah, who thereupon took no notice of the further process of the court. His people beat off the Sheriff and his officers, when they attempted to take him under a capias. Hereupon a writ was issued to sequestrate his property to compel appearance, and the Sheriff collected a force of sixty sailors and others who marched armed from Calcutta to Cossijurah in order to effect their purpose. This they did, as it was alleged by the Rajah, with great violence and with acts of disrespect towards his idol and zenana The Governor-General in council ordered Colonel Ahmuty, who was in command of troops at Midnapore, to march a force of sepoys against the sheriffs party and arrest them. He did so. Attempts were made to attach the officer who commanded the troops, as for a contempt, but the execution of this process also was prevented by military force. Finally actions were brought against Hastings and the other members of council individually by the plaintiff in action against the Rajah of Cossijurah. At first they entered appearances, but when they saw the terms of the plaint against them, which showed that they were sued for acts done in their public capacity they all(except Barwell) caused their counsel to make a declaration in court that they withdrew their appearances, and that they would not submit to any process which the court might issue against them.
Owing to this conflict between the Supreme Court and the Council of The East India Company, the condition of civil and judicial administration in the Bengal province had become intolerable. After the Cossijurah case, Warren Hastings with a dispassionate view of the position, seems at once to have fully realized the evils which would arise if the conflict was allowed to break out actively again. As a measure of practical adjustment he therefore arranged the appointment of Sir Elijah Empcy then Chief Justice of the Supreme Court to be also the Judge presiding at the head of the Company’s Court, thus uniting in one individual the leadership of the rival estates. But this fact and the temporary union of the head of the two systems of judicature in the one personality had no permanent effect in uniting the two systems of judicature, which continued to function independently and with separate systems of procedure.
To remedy the state of affairs then existing and for the direct purpose of creating a settlement between the two conflicting elements the Act of Settlement was passed by Parliament in England in 1781. In this settlement the territorial limits of the jurisdiction of the Supreme Court were restricted in effect to the town of Calcutta but the dual system were eontinued as two systems and the independence of each fixed.
The Supreme Court at Calcutta continued to exist for a period of upwards of 80 years Indeed in marked contrast to the odium in which it had come to be regarded prior to this period, it came to acquire in the period after 1781 an outstandingly excellent and honoured reputation of the highest possible character.
Part- IIIJudicial system in Bengal after 1862 :
As a result of the Act of 1858 a Bill was introduced in Parliament in 1861 for the establishment of a High Court at Calcutta and this was passed. In pursuance of the Act, Lettcrs Patent dated 14th May, 1862 were issued. The High Court in Calcutta was formally opened in July, 1862.
As a result of the extinction of the East India Company and the mofussil courts (previously the company’s court) being taken over by the Crown, and by the mofussil courts being made subordinate to the High Court, all the courts throughout Bengal thus became for the first time in the full sense of the word Crown Courts, and were brought for the first time under one uniform system of control. Establishment of the Calcutta High Court there was, for the first time, created a unified system of justice for the whole province of Bengal under single uniform control that of the High Court itself.
In 1865 Letters Padent for the High Court of Judicature at Fort William in Bengal was adapted on 28th December. [The relevant portions are as follows:
Letters Patent for the High Court of Judicature at Fort William in Bengal
[As amended up to date]
Dated the 28th December, 1865.
Civil Jurisdiction of the High Court*11. Local limits of ordinary original jurisdiction of the High Court.— We do hereby ordain, that the said High Court of Judicature at Fort William in Bengal shall have and exercise ordinary original civil jurisdiction within such local limits as may from time to time be declared and prescribed by any law made by competent legislative authority for India, and, until some local limits shall be so declared and prescribed, within the limits declared and prescribed by the proclamation fixing the limits of Calcutta issued by the Governor-General in Council on the Tenth day of September in the year of Our Lord One thousand seven hundred and ninety-four, and, the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.
13. Extraordinary original civil jurisdiction.—And We do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.]
There has thus been no change either as a result of the Government of India Act, 1915, or of the Government of India Act,1935 (by this act the Calcutta High Court, for those matters in which it was formerly under the responsibility of the Government of India, has now been placed under the responsibility of the Provincial Government of Bengal), in the matters here being considered, whether in regard to the nature of the law to be administered in the Calcutta High Court, or in regard to the scope of its jurisdiction, or in regard to its procedure, or in regard to its language, or in regard to its relationship in these matters with other courts in Bengal or Assam. Yet the original side of the Calcutta High Court even today is still noticeably the successor of the Mayor’s Court and the Supreme Court, while the mofussil and subordinate courts throughout the province and the Appellate Side of the Calcutta High Court, even today are noticeably the successors of the Company’s Courts, and the difference in the origin of their jurisdictions is still, even today in certain respects apparent certain anachronisms, which even today persist as a result of preceding events.