Sheriff

Chapter- III

(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-I

Judicial & 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.

In regard, to this same period, that preceding 1726, it may be worth here recalling that there were in India during this period not one but three different East India Companies, the first “The Governor and Company of Merchants of London, Trading to the East Indies”, was incorporated under that name under the Charter of the 43rd’ year of Queen Elizabeth dated 31S| December, 1601, The second “The English Company of Merchants Trading to the East Indies; ( under the charter of the 10th year of William III dated 5th September, 1698), The third “The United Company of Merchants of England Trading to the East Indies” was incorporated as a result of an amalgamation of the two previous companies, in a tripartite indenture between Her Majesty Queen Anne and the two east India companies dated 22nd July,1702. It was confirmed when certain important administrative arrangements were enacted in the Charter of the 13th year of George I dated 24th September, 1726, granted by George I to the United Company under the new name. The Charter dated 24th September, 1726, since this is the charter under which the Mayor’s Court was established in Calcutta. It was to be a court of Record. And it was to have jurisdiction to all civil suits between all persons within the town or factory of Calcutta or within any of the factories subject or subordinate to it. The criminal jurisdiction was stated as being ‘‘in and for the said town or factory of Calcutta at Fort William in Bengal and other factories subordinate thereto and within ten miles of the same respectively”. The nature of the law administered in this court was then existing common law of England together with the statutory law then existing in England. The procedure appears to have been an English procedure. The language of the court, also, appears to have been English. By the charter of dated 26(h Ceo,II,1753, the Mayor’s Courts, the courts of Quarter Sessions and of Over and Terminer and Coal Delivery were reestablished with the same powers as in the former charter, except that, with regards to the Mayor’s courts they were not to try suits or actions between Indian parties, such actions being left to be determined among themselves unless both parties by consent submitted the same for the determination of the Mayor’s courts, and criminal jurisdiction of the courts of Over and Terminer and Gaol Delivery was stated to be for the trial of offences committed within the said towns or within any of the said factories or places subordinate thereto, the words ‘or within 10 miles of the same’ being omitted. In addition to the Mayor’s court a court of Request was also by the charter of 1753 established in Calcutta for the determination of civil suits involving small pecuniary amounts.

The company’s courts continued to operate concurrently and independently from 1726 to 1774.’ In those courts neither the substantive law administered nor the procedure was the same English law administered in the Mayor’s court, but, while being of a nature more resembling the indigenous law of the country, was regulated only by the instructions issued by the Company itself, who had definitely refused to apply the common law in their courts. Increased commitments of the company, leading up to changes in the system of administration of .Justice in Bengal by the Company.

Until the battle of Plassey in 1757, the establishment of the company at Calcutta had almost exclusively commercial, and the company had been chiefly concerned with the management of its own factory in Calcutta. After their victory in the battle of Plassey on 24th June, 1757 they gained control over Bengal, Bihar & Orissa, but for sometime they administered its affairs with the acquiescence of puppet Nawabs. They acquired the ‘Diwani’ of Bengal, Bihar & Orissa from Moghul Emperor Shah Alam II in 1765. During the first seven years which followed the grant of the Diwani (1765-1772) the civil administration was managed through two Indian Diwans. In 1772 the civil and judicial administration of mofussil was then undertaken by the company itself, direct. A comprehensive plan (under which the exchequer and treasury were removed from Moorshedabad to Calcutta) for the collection of revenue and administration of justice was adopted by the Government on 21st August 1772. For civil justice provincial civil courts styled Mofussil Dcwanny Adawlats were established in each collectorate. With a superior civil court at Calcutta to be called Dewanny Sudder Adawlat. For criminal justice criminal courts styled Foujdary Adawlats were also established in each District.With a superior criminal court at Calcutta to be called the Nijamat Sudder Adawlat. The system of the company’s courts set up under this plan.

Part-II

Judicial & 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.

In 1774 the European Collectors were recalled and Indian Arnils appointed instead. Six Provincial Councils were appointed for the respective divisions of Calcutta, Burdwan, Dacca, Moorshedabad, Dinajpur and Patna. Appeals lay from the decisions of the Amils to the Provincial Council and thence under certain restrictions to the (Governor and Council as the Sudder Adawlut. In 1775 the Nijamat Adawjut was removed from Calcutta and established at Moorshedabad under the superintendence of Muhammad Riza Khan as Naib Najim. Under Bengal Judicial Regulation of 1780 Dewanny Adawluts were established in the six divisions. The company’s courts continued to administer the traditional indigenous system of laws. Their procedure being regulated by the council of the company.

Relation between the Supreme Court and the Company’s Court :

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.

The company’s courts after 1781; Various alterations were made from time to time in the organization of the company’s courts. By the Act of Parliament in 1781 the Sudder Dewanny Adawlut was constituted a court of Record. In 1787 further important changes were made in the organization of the Dewanny Adawluts by Governor — General Lord Cornwallis. In 1834 one central legislative authority in place of three Governors’ Councils was created. This central power of legislation enabled the first Cevil Procedure Code to be passed in 1859 This Code governed all the provincial civil courts in Bengal for the regulation of the procedure followed in those courts, it took the place of the Code of Regulation till then existing. The Code of Civil Procedure as passed in 1859 had no application to the procedure of the Supreme Court of Calcutta. In spite of the creation of the new central Legislature and in spite of the enactment of the all-India code of civil Procedure of 1859, the divergence of the two judicial systems still persisted. The procedure of the Supreme Court continued to be regulated by rules made by the Judges of the Supreme Court itself, independently of procedure under the code enacted for and followed in the other Courts in the province Also the substantive law administered in the two sets of courts continued, as before, to differ. Moreover while the control of the Supreme Court rested in the Honourable Chief Justice and Judges of that court, The control of the mofussil courts remained with the Company and the Governor-General in council.

On 18th September, 1858, the Directors of the East India Company transferred their whole possessions in India to the Crown, as well as the service of their civil and military officers, the transfer of the government to the Queen being announced by Royal Proclamation on 1st November 1858. The East India Company thereafter retained only a formal existence for the purpose of financial liquidation.

Part- III

Judicial 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.

Recital of Acts 24 & 25 Vict., c. 104.—VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To ail to whom these Presents shall come, greeting : Whereas by an Act of Parliament passed in the Twenty-fourth and Twenty-fifth Years of Our Reign, intituled "an Act for establishing High Courts of Judicature in India," it was, amongst other things, enacted that it should be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to erect and establish a High Court of Judicature at Fort William in Bengal, for the Bengal Division of the Presidency of Fort William aforesaid, and thai such High Court should consist of a Chief Justice and as many Judges, not exceeding fifteen, as Her Majesty might, from time to time, think fit to appoint, who should be selected from among persons qualified as in the said Act is declared: Provided always, that the persons who at the time of the establishment of such High Court were Judges of the Supreme Court of Judicature, and permanent Judges of the Court of Sudder Dewanny Adawlut or Sudder Adawlut of the same Presidency, should be and become Judges of such High Court without further appointment for that purpose, and the Chief Justice of such Supreme Court should become the Chief Justice of such High Court, and that upon the establishment of such High Court as aforesaid, the Supreme Court and the Court of Sudder Dewanny Adawlut and Sudder Nizamut Adawlut at Calcutta in the said Presidency, should be abolished :—

And that the High Court of Judicature so to be established should have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate, and matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to the administration of justice in the said Presidency, as Her Majesty might, by such Letters Patent as aforesaid, grant and direct, subject, however, to such, directions and limitations, as to the exercise of original, civil, and criminal jurisdiction beyond the limits of the Presidency-town, as might be prescribed thereby : and save as by such Letters Patent might be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court so to be established should have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under the said Act, at the time of the abolition of such last mentioned Courts :—

And whereas, We did, upon full consideration of the premises, think fit to erect and establish, and by our Letters Patent under the Great Seal of the United Kingdom of Great Britain and Ireland, bearing date at Westminster the fourteenth day of May, in the Twenty-fifth Year of our Reign, in the Year of our Lord One thousand eight hundred and sixty-two, did, accordingly, for Us, Our heirs and successors, erect and establish, at Fort William in Bengal, for the Bengal Division of the Presidency of Fort William aforesaid, a High Court of Judicature, which should be called the High Court of Judicature at Fort William in Bengal, and did thereby constitute the said Court to be a Court of Record; and whereas We did thereby! appoint and ordain, that the said High Court of Judicature at Fort William in Bengal should, until further or other provision should be made by Us or Our heirs and successors in that behalf, in accordance with the recited Act, consist of a Chief Justice and five Judges and did thereby, constitute and appoint certain persons, being respectively qualified as in the said Act is declared, to be Judges of the said High Court—

And whereas by the said recited Act it is declared lawful for Her Majesty, at any time within three years after the establishment of the said High Court, by Her Letters Patent, to revoke all or such parts of provisions as Her Majesty might think fit of the Letters Patent by which such Court was established, and to grant and make such other powers and provisions as Her Majesty might think fit, and as might have been granted or made by such first Letters Patent:—

And where by the Act of the Twenty-eighth year of Our Reign, chapter fifteen entitled "an Act to extend the term for granting fresh Letters Patent for the High Courts in India, and to make further provision respecting the territorial jurisdiction of the said Courts", the time for issuing fresh Letters Patent has been extended to the First 1 of January, One thousand eight hundred and sixty-six:—

And whereas in order to make further provision respecting the constitution of the said High Court, and the administration of justice thereby, it is expedient that the said Letters Patent dated the Fourteenth of May, One thousand eight hundred and sixty-two, should be revoked, that some of the powers and provisions thereby granted and made should be granted and made with amendments and additional powers and provisions by fresh Letters Patent:-

1. Revocation of Letters Patent of 1862. — Now know be that We, upon full consideration of the premises, and of Our especial grace, certain knowledge, and mere motion, have thought fit to revoke, and do by these presents (from and after the date of the publication thereof as hereinafter provided and subject to the provisions thereof) revoke Our said Letters Patent of the Fourteenth of May, One thousand eight hundred and sixty-two, except so far as Letters Patent of the Fourteenth Year of His Majesty King George the Third, dated the Twenty-sixth of March, One thousand seven hundred and seventy-four, establishing a Supreme Court of Judicature at Fort .William in Bengal, were revoked or determined thereby.

2. High Court at Fort William to be continued. — And We do by these presents grant, direct and ordain, that, notwithstanding the revocation of the said Letters Patent of the Fourteenth of May, One thousand eight hundred and sixty-two, the High Court of Judicature, called the High Court of Judicature at Fort William in Bengal, shall be and continue, as from the time of the original erection and establishment thereof, the High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William aforesaid; and that the said Court shall be and continue a Court of record, and that all proceedings commenced in the said High Court prior to the date of the publication of these Letters Patent shall be continueci and depend in the said High Court as if they had commenced in the said High Court after the date of such publication, and that all rules and orders in force in the said High Court immediately before the date of the publication of these Letters Patent shall continue in force, except so far as the same are altered hereby, until the same are altered by competent authority.

3. Judges of the said High Court to be continued.—And We do hereby appoint and ordain, that the person and persons who shall immediately before the date of the publication of these Letters Patent be the Chief Justice and Judges, or acting Chief Justice or Judges, if any, of the said High Court of Judicature at Fort William in Bengal, Fort William in Bengal, shall run and be, in the name and style of Us, or of Our heirs and successors, and shall be sealed with the seal of the said High Court.

8. Appointment of officers.—And We do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal from time to time, as occasion may require, and subject to any rules and restrictions which may be prescribed by the Governor-General in Council, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice, and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent and it is Our further will and pleasure, and We do hereby, for Us, Our heirs and successors give, grant, direct, and appoint, that all and every the officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall from time to time, appoint for each office and place respectively, and as the Governor-General in Council shall approve of: Provided always, and it is Our will and Pleasure, that all and every the officers and clerks to be appointed as aforesaid shall be resident within the limits of the jurisdiction of the said Court, so long as they shall hold their respective offices; but this proviso shall not interfere with or prejudice the right of any officer or clerk to avail himself of leave of absence under any rules prescribed by the Governor-General in Council, and to absent himself from the said limits during the term of such leave, in accordance with the said rules.

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.

* For the limits of the Ordinary Original Jurisdiction of Calcutta High Court Calcutta High Court (Jurisdictional Limits) Act, 1919 (XV of 1919) in Page 21.

12. Original jurisdiction as to suits. And We do further ordain, that the said High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated, or in all other cases if the cause of. action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the Defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or value of the property sued for, does not exceed One hundred rupees.

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.

The Sheriff of Calcutta

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