BLS LLB - HISTORY OF COURTS - CHAPTER NO. 4

Judicial plan of 1787

Judicial plan of 1790

Judicial plan of 1793

Progress of Adalat System under Sir John Shore.

Cornwallis and plan of 1787 –

            Warren Hasting came to India as a clerk aged 16 and later became the Governor-General of Bengal and British India. He divided the Functions of revenue and judiciary system. But many senior member of company did not like it and the separation is costly for company. When Warren Hasting left India. The court of Directors on 12^th April 17866 directed the Corwallis to vest in one person the revenue, judicial and magisterial Functions. Cornwallis followed the ordered and introduced plan of 1787. In this plan Cornwallis increased the salaries of collectors and he reduced the number of Diwans district from 36 to 23 and this made it possible to increase the salaries of collectors the scheme was introduced through 2 regulations. I^st regulation dealt with administration of justice and it was enacted on 27 June 1787. In each district a company’s English servant was appointed as collector who will collect revenue as well as will decide to all cases relating to revenue collector also worked as judge in the district Moffussil Diwani Adalat to decide civil cases, succession cases and lad related case like boundaries.

            Revenue court was known as Mal Adalat appeals from Mal Adalat went to the Board of revenue at Calcutta and finally to the Governor – General. In Diwani Adalat appeal in the cases where matters involving more than 1000 Rs. Went to the Sardar Diwani Adalat, where Governor – General and Council handled the cases.

            Appeals from Sardar Diwani Adalat went to the King – in – Council. In each Adalat registrar was appointed as a subordinate officer to help collectors. Registrar was given power to handle decide cases up to Rupees 200 and order passed by him became valid. When it were signed by the judge of Moffussil Adalat.

            As a Magistrate collector was authorized to try and arrest criminals in petty offences. The Magistrate got power to hear the cases against the Englishmen who committees Crimes against Indians in this case Magistrate made inquiry and he felt that there is ground for trial he would send the Englishmen accused to the Calcutta for trial

Judicial Reforms of Lord Cornwallis

            Lord Cornwallis succeeded Warren Hastings in 1786.  The Governor Generalship of Lord Cornwallis extended from 1786 to 1793.  This period constitutes a very remarkable and a highly creative period in Indian Legal History. He was Commander-in-Chief as well as Governor General.  Lord Cornwallis brought reforms in the revenue, military, civil and criminal judicial system in India in his tenure.  Lord Cornwallis introduced the concept[t of administration according to law for the first time in India. After his arrival in India, he found that the whole system was complicated, illogical and wasteful. He reorganized the judicial system, both civil and criminal, in Bengal, Bihar and Orissa.  He was successful to a great extent in checking corruption in the courts which was rampant in those days. Lord Cornwallis introduced the reforms in the judicial system in three installments – first in 1787, secondly in 1790 and thirdly in 1793.

The Judicial Plan of 1787 of Lord Cornwallis

            During the tenure of Warren Hasting’s, the judicial the revenue functions were separated by vesting them in distinct functionaries.  The Directors of the Company demanded economy, simplification and purification and as an essential part of these ideas the merger of revenue and judicial functions. The Court of Directors directed Cornvellis to vest in one person the revenue, judicial and managerial functions.  This scheme was introduced through two regulations – one dealt with revenue administration and was passed on the 8^th June 1787, the other dealt with the administration of justice and was enacted on June 27, 1787.

The Salient features of Regulations of June 8, & June 27, 1787

1.    The number of districts were reduced from 36 to 23.  In each district, a Company’s English Covenanted Servant was appointed as Collector.

2.    The Collector was made in charge of the revenue collection in the district.  All revenue cases were decided by the court known as Mal Adalat.  It was presided over by the Collector.

3.    The Collector was also to act as the Judge in the district Mofussil Diwani Adalat to decide civil cases.  The judge was also to decide cases and claims concerning succession and boundaries to zamindaries, talukadaries or other rent free land.

4.    The collector was also to act as the Magistrate in the district.  In this capacity, he was to arrest the criminals and send them to the nearest Mofussil Nizamt Adalat for their trial.  As a Magistrate he was given power to punish offenders who have committed pretty crimes by inflicting punishment not exceeding 15 strokes or imprisonment not exceeding 15 days, in serious cases, the offenders were committed to the Mofussil Nizamat Adalat for trial.

5.    The functions of civil justice, powers of Magistrate and function of revenue collection and adjudication of revenue disputes were united in the Collector.  However he was to discharge each part of his duties separately according to the department to which it belonged.

6.    The salaries of the collectors were increased to seek purity of administration though it was not in favor of economy. 

7.    Appeals from the decisions of the Collector in his Mal Adalat lay to the Board of Revenue at Calcutta and then to the Governor-General-in-Council.  Appeals from the Mofussil diwani Adalat were allowed to be preferred to the Sadar Diwani Adalat if the amount involved was more than Rs.1000/-. A further appeal was allowed to the Kind-in-council(Privy Council) in cases where the subject matter involved was £5000 or more.

8.    The Sadar Diwani Adalat, consisting of the governor-General and the members of his Council was assisted by the Chief Quazi, Chief Mufti and two Moulvies who were to expound the Muslim Law.  In cases involving the interpretation of Hindu law, the Sadar Dwani Adalat was assisted by Hindu Pandits.

9.    An Office of Registrar, a subordinate officer, was created to assist the Collector, in his administration of civil justice.  The Registrar could decide cases up to Rs.200.  However the decree passed by him were to be counter-signed by the judge of the Mofussil Diwani Adalat to avoid is carriage of justice.

10. The Birtish nationals residing in the mofussil area beyond Calcutta were subject to the criminal jurisdiction only of the Supreme Court and could not be tried by the Mofussil Fauzdari Adalats.  But, it was laid down in 1787 that the Magistrates would have authority on information lodged on oath to apprehend the British subjects.  After making an inquiry in the circumstances, if the Magistrate was satisfied that there existed grounds of his trial, he would send the accused to Calcutta for trial.  The complainants and their witnesses had also to go the Calcutta to prosecute the accused.  If they were poor, their charges of journey were to be met by the government.  All other Europeans, who were not British subjects, were placed on the same footing as Indians and their cases were within the jurisdiction of the Mofussil Fauzdari Adalats.

Defects of the Scheme of 1787

The collector was over empowered and united the functions of judicially and executive in one person.  It was a retrograde step.  The collector was more interested in revenue collection than the administration of justice.

Judicial Plan of 1790 of Lord Cornwallis

            The judicial plan of 1787 of Lord Cornwallis mainly introduced reforms in civil and revenue courts. In those days criminal justice was administered as per the Mohammedan Criminal law. It suffered from various defects. By the Judicial Plan of 1790 Cornwallis concentrated his attention to reform criminal courts as he realized that the prevailing system was defective and inefficient.  Though under the judicial plan of 1787 the Magistrates (Collectors) were empowered to try and punish petty offences, very limited powers were given to try criminal cases.  The result was the majority of the cases were to be decided by the Muslim Law officers (Kazi & Mufti) of Moffussil fauzdari Adalats.The working of these Adalats was wholly unsatisfactory and irregular.  The following were the major defects in the administration of criminal justice.

1.    The entire criminal administration of justice was in the hands of Nawab,.  He had no effective administrative control over the Muslim law officers who were the judges of criminal courts.

2.    The salaries given to the persons engaged in the work of rendering criminal justice was quite insufficient to support the dignity of their office.  Moreover, salaries were not paid in time.

3.    There was no security of the tenure of Muslim law officers.  They could be dismissed at any time discretion of Naib Nawab.  This face stimulated them to accept bribes to grow richer so that they could live comfortably when dismissed.  There was wide prevalent miscarriage of justice..

4.    The Moffussil  Fausdari Adalats were vested with so much of powers that except death sentence they could impose any punishment.  The highest criminal court was Sadar Nizamat Adalat and it functioned from Murshidabad.  It proved quite ineffective to exercise control over the lower criminal courts.

5.    The Muslim Criminal Law which was applied by the courts was also defective in many ways. Some of its provisions were contrary to the principles of natural justice and in some cases the punishments were quite contrary to the basic tenets of civilization.

6.    The numerous robberies, murders and other enormities showed that the administration of criminal justice was in a very deplorable state. These evils resulted from the great delay which occurred in bringing offenders to punishment and the law not being duly enforced.  A number of examples are traceable where the Mofussil fauzdari Adalts had either awarded unduly harsh punishments upon persons guilty of less serious crime, or inadequate sentence were passed upon hardened criminals.

Salient Features of Judicial Plan of 1790

            According to the regulation passed by the Governor-General-in-Council on 3^rd December, 1790 some reforms were introduced in the administration of criminal justice.  Cornwallis took strong steps to remove the defects of the Mohammedan Criminal Law and also the defects in the organisation of the Criminal Courts.

            In 1790, the orgnisation of criminal court was modified.  The arrangement of existing courts was changed.  The Mofussil Fauzdari Adalats were abolished.  The new plan provided for three types of criminal courts. There are:

1.    Courts of District Magistrates

2.    The Courts of Circuit and

3.    Sadar Nizamat Adalat

1.         The Court of District Magistrate

            In each district, the Collector was to act as the Magistrate.  As a Magistrate, he was to arrest the accused person and hold an inquiry into the circumstances of the crime alleged against him.  If the Magistrate found the complaint against the suspect wholly unfounded, he would discharge him.  If the offence committed was petty, the Magistrate could himself award the sentence of corporal punishment not exceeding 15 strokes or 15 days imprisonment.  If the crime was serious, the accused was to be tried by the Court of Circuit.  In some offences he could even release the accused on bail to be tried at the next sitting of the Court of Circuit.  But in cases of murder, robbery etc., he could not grant any bail.

2.         The Court of Circuit.

            The entire Mofussil area was divided into four divisions – Patna, Calcutta, Murshidabad and Dacca.  A Court of Circuit consisting of two company’s covenanted servants was established in each division to try all criminal cases.  It was not a stationary but  a moving court it moved from district to district within the division of trying the accused persons.  The existing Mofussil Fauzdari Adalats with the Muslim Law Officers were abolished and their place was taken over by the four Courts of Circuit.

            The Court of Circuit was to visit each district within its jurisdiction twice a year to dispose of criminal cases awaiting trial.  The Indians and European, not being British subjects, were put under the jurisdiction of the Courts of Circuits.

            The courts of Circuit were assisted by Muslim law officers such as Quaazi and Muftis.  The Quazi and Muftis were to expound the law and propose the Fatwa (decision) on the facts,  If it was in conformity with the principles of natural justice and equity, the sentence was passed by the judges of the court. The award of deth sentence was to be referred to the Sadar Nizamat Adlat for confirmation.  There could be an appeal from the decision of the Court of Circuit to the Sadar Nizamat Adalat.

3.         The Sadar Nizamat Adalat.

            The seat of the Sadar Nizamat was at Murshidabad. Under the judicial plan of 1790, the Nawab of divested of all his judicial powers.  The Sadar Nizamat Adalat was shifted to Calcutta.

            The Governor-General and members of his council presided over the Sadar Nizamat Adalat.  They were to be assisted by Muslim law officers i.e., Chief Quazi and to Muftis.

            The Sadar Nizamat Adalat was required to conduct its business at least once in a week and a regular record of its proceedings was to be kept.  The Sadar Nizamat Adalat was to apply the Mohammedan Criminal law as amended by the governor-General-in-Council.

            In order to make the system full proof against corruption, bribery, the Muslim Law Officers were nominated by the Governor-general-in-Council and they could not be removed from their posts except by the governor-general-in-council on the ground of incapacity or misconduct and thus Muslim Law Officers were given a security of tenure.

            The new criminal judicial under the scheme of 1790, was inaugurated on January 1, 1791.  The office of the Remembrance created during Warren Hasting’s regime was now abolished. The first meeting of the Sadar Nizamat Adalat was held on January 10, 1791.  Under the new scheme, the governor-general-in-Council for the first time assumed a direct responsibility for the administration of criminal justice in Bengal, Bihar and Orissa.  Besides, the salary of the persons working in the criminal courts was increased so that they might not be easily tempted.

Reforms introduced in Mohammedan Criminal Law between 1790 and 1793.

            Lord Cornwallis made the following reforms in the Mohammedan Criminal Law and all the Adalats were directed to decide the cases according to the modified Mohammedan Criminal Law.

1.    In determining the punishment to be inflicted for the crime of murder, the intention of the party rather than the manner of instrument employed should be taken into account.

2.    The punishment of mutilation was abolished and imprisonment and hard labour for 14 years and 7 ears were substituted for the loss of two  limbs and that of one limb respectively.

3.    The law of evidence was modified so as make provision that religion would not be a bar to be a witness and thus the rule that a Hindu could not be a witness against Mohammedan was abolished.

4.    The relations of a murdered person could not grant pardon to the offenders so as to do away with the trial.

5.    The Sadar Nizamat Adalat could pass death sentence instead of granting blood money to the heir as provided under Muslim Law.

Defects

            In the systems of 1790, the Courts of Circuits were called upon to handle huge amount of work.  In 1792, to lighten the burden of the Courts of Circuit, the Magistrates were empowered to hear and determine complaints of petty thefts and to inflict corporal punishment for the offence up to 30 strokes or imprisonment not exceeding one month.

Judicial Scheme (or Plan) of 1793 of Lord Cornwallis

            All the regulations framed between 1772 and 1793 were complied in a code which was known s ‘Cornwallis Code’. In May, 1793 the Cornwallis code was passed – a body of forty eight regulations which held in the field for twenty years.

            By the judicial plan of 1793 the following reforms were made.

1.         Reorganisation of Mofussil Diwani Adalat

            By the plan of 1793, in the place of the Collector, a civil servant of the company was appointed as the judge of the Mofussil Diwani Adalat to decide civil and revenue cases.  He was empowered to try all suits in respect of succession or right to real or personal property, land, rents and revenues, debts, accounts, partnership, marriage, caste and claims of damage etc.  Mal Adalats were abolished and the suits triable by the Mal Adalats were transferred to the Mofussil diwani Adalat.  The Collector was to be responsible only for collection of revenue.  The power of administering civil justice was taken away from the Collector and given to the Diwani Adalat.  The Collectors were deprived of their judicial powers to decide civil cases and revenue cases.  The collectors thus became merely administrative officers.

            All persons, except the British subjects, were to be amenable to the jurisdiction of Mofussil Diwani Adalat.  No order, proceeding or decree was to be made by an adalat except in open court.  No judge was to correspond with parties in cases pending before him.  A party could make a representation to the adalat in writing either personally or through an authorized vakeel.  The rules of procedure to be observed by the Mofussil Diwani Adalat for receiving, trying and deciding cases were made.  The period of limitation was fixed at 12 years.

2.         Executive Subjects to Judicial Control

            All executive officers including Collectors were subject to the jurisdiction of the Diwani Adalat personally for all acts done by them in official capacity.  Any person who felt aggrieved by the acting of the servants of the company could sue such officers I the ordinary court.

3.         British Subjects and the company’s Adalats

            There was an inequitable distinction which existed between the British subjects and the natives of India. The Diwani Adalat was empowered to take cognizance of all the cases instituted by the British subject against the natives, but the native’s claim against British subjects were not enforced by the Diwani Adalat.  In order to remedy this defect it was provided that the diwani Adalat would have jurisdiction over all British subject s in all disputes of civil nature not exceeding in valur of Rs.500/-. In cases above Rs.500/- the jurisdiction over British subjects continued to vest in the Supreme Court at Calcutta created in 1774 and the company’s court were not given any jurisdiction over the British subjects.

4          Establishment of Provincial Court of Appeal.

                The plan of 1793 provided for establishment of four Provincial Courts of Appeal at Calcutta, Patna, Dacca and Murshidabad.  Each Court was to be presided over by three English Judges.  At least two judges were required to make a quorum.  The Provincial Court of Appeal could entertain original suits or complaints which a Mofussil diwani Adalat refused to receive or proceed.  It had jurisdiction to cause such adalat to hear and determine the same.  It had jurisdiction to hear appeals filed from the decision of the Mofussil Diwani Adalat without any pecuniary limit.

            The Provincial Courts of Appeal were further authorized to receive the charges of corruption against the subordinate Judges and to forward them to Sadar Diwani Adalat and also to report the cases of negligence and misconduct by the subordinate judges.  They were also to enquire into cases referred to them by the Sadar Diwani Adalat or the government for investigation.

            The decisions of the Provincial Courts of Appeal were made final in cases in which the subject matter did not exceed one thousand rupees.  From these courts a further appeal lay to the Sadar Diwani Adalat in all cases involving over one thousand rupees.

5.         Reorganization of Sadar Diwani Adalat.

            By the plan of 1793, the Sadar Diwani Adalat was re-established at Calcutta consisting of the governor-General and the members of the Supreme Council.  It received appeals from Provincial Courts in cases where the subject matter involved exceeded Rs.1000/-. Further appeals lay to the King-in-Council where the amount in dispute exceeded £5000/-. Thus the decision of Sadar Diwani Adalat were final up to £5000/-.  This court could deal with complaints of corruption and incompetency against judges of the courts subordinate to it.  It was empowered to supervise and control the functions of the lower courts.  It could direct the court of Diwani Adalat and Provincial courts of appeal to receive and dispose of any case.  It was also empowered to receive appeal from decision of Mofussil Diwani Adalat which might be cognizable in any Provincial court of Appeal in case of Provincial court had omitted or refused to proceed in it.

6.         Munsiff’s Courts or Native Commissioners.

            The plan of 1793 provided for the appointment of the Native commissioners who could decide civil suits for sums of money or personal property of a value no exceeding Rs.50/-.  These officers were called Munsifs.  The number of these commissioners in each district depended upon the bulk of the work to be disposed of.  Their selection was made from the landlords and farmers etc., and no other qualifications were prescribed for appointment.

            All decisions of Munsifs were appealable to Moffisil Diwani Adalat and then a second appeal cold be taken to the Provincial Court of Appeal.

            The Munsiffs were not allowed any salaries and allowances except  a commission of one ana (old coin) per rupee ( a rupee is equal to 16 anas) upon all the sums litigated before them.

7.         Creation of the Registrar’s courts.

            Each Mofussil Diwani Adalat was provided with a Registrar, who was a covenanted servant of the company.  The judge of the Mofussil Diwani Adalat could refer to his Registrar suits for money or personal property, subject matter of which did not exceed two hundred rupees.  This arrangement was made to relieve the accumulation of arrears of cases in Diwani Adalats.  All the case decided by the Registrar required the counter signature of the judge of the Adalat and he was not accorded an independent status to deliver his own judgment.

8.         Abolition of Court Fee.

            By the plan of 1793 the court fees was abolished.  The abolition of court fees was a great relief to the poor people.  The gates of the Courts were thrown open to all, rich and poor alike.

9.         Security of Tenure of the Indian Law Officers.

            The plan of 1793 provided that the law officers of both the Sadar Adalats and Provincial courts of Appeal and Circuit, and the court of Mofussil diwani Adalat were to be appointed and dismissed by the Governor-General-in-Council.  They were to take oath on appointment.  They were guaranteed of security of tenure.  They could be tried for corruption.  The governor-General-in-Council was the final authority to take any action.

10.       Administration of Criminal Justice.

            By the plan of 1793 the following modifications were made in the administration of criminal justice.

1.    The Collectors, who acted as Magistrates under the Scheme of 1790, were deprived of their magisterial powers.  The judges of the Mofussil Diwani Adalat were made Magistrates with the same powers and functions as were assigned to the collectors.

2.    The judicial powers of the Magistrates were redefined.  They could punish petty offences by imprisonment up to 15 days or by a fine up to Rs.100/-.

3.    The courts of circuit established in 1790 and the Provincial courts of Appeal establishment in 1793 were merged to create four court of appeal and circuit.  Each such court was to consist of three English judges.  The Court was to break itself into two divisions (the senior judge forming one division and the other two judges forming the other division) which were to go on circuit simultaneously.  After completing the same, ll the three judges were to sit to hear appeals from the Mofussil Diwani Adalats.

4.    No Changes was made in the constitution of the Sadar Nizamat Adalats.

11. Organization of the Legal Profession –

By the Plan of 1793, the legal profession was regulated. The persons who joined the profession of (vakeels) were required to obtain a certificate (Sanad)  after fulfilling the qualifications. Sardar Diwani Adalat was to issue licenses to the pleaders who applied to practice in the law courts. They could be removed from the list of vakeels for proved misbehavior. They were entitled to prescribed fees which were payable to the Court and not directly to the

12. Reforms in the Legislative Methods and Forms –

The Regulation of 1793 provided that every regulation to be passed in future must in preamble stating the reason for its enactment. It was further provided that all the regulation passed in a year to be numbered. They had to be printed and bound up in volume. Provisions were made to send them to law courts.

Comments on the Plan of 1793 of Lord Cornwallis –

            The judicial reforms under the plan were the greatest contribution in the field of legal system of India and it forms the high water mark in the legal system of India.

Merits of the Plan of 1793 –

1)    The separation between the judicial and revenue functions was maintained.

2)    The separation between the judiciary and the executive was maintained to some experts.

3)    The principle of the judicial control of the executive authority was applied.

4)    Checks and balances were inserted in legal machinery to arrest the practices of corruption.

5)    The organization of the Courts was improved.

6)    Provincial Courts of Appeal were established for first appeal.

7)    The native law officers were provided security of tenure.

8)    Legal profession, for the first time, was organized in India.

9)    Court – fee was abolished.

10) Subordinate Judicial Agencies were established to deal with petty cases through Munsif.

11) British subjects were equalized to natives in jurisdiction of the Civil Courts.

12) An elaborate procedure for the Diwani Adalats to follow was prescribed.

13) Provision to introduce uniformity in the form of regulations made by the Government for good feature of this plan.

Demerits –

1)    The judicial arrangements of 1793 were expected to cost an additional sum of four lacks rupees to the Company.

2)    A conspicuous defect in the scheme of 1793 was the exclusion of the Indians from any effective share in public legal administration.

3)    The abolition of the court fee resulted in a great increase in the litigation.

4)    The appointment of English judges only led to the failure of administration of justice on account of their ignorance of the customs, traditions and language of the country.

5)    An anxiety to make the system perfect resulted in making it complicated and encumbered.

6)    The scheme did not allow the Munsiffs any salary except a petty commission on the value of the suits and this led naturally to bribery and corruption in Munsiffs courts.

Conclusion –

It is said that the organization of judicial administration initiated by Warren Hastings was completed by Lord Cornwallis.

IMPORTANCE OF CHARTER ACT, 1793 –

            The Charter Act 1793 was the first in the series of Charter Acts. The East India Company was granted to monopoly trade license in 1773 for 20 years. The period of monopoly expired on 1793. The Court of Directors applied to the Parliament for the renewal of their Charter. A new bill was introduced in the House of Commons. The bill was passed without any difficult and it is known as the Charter Act of 1793.

Main Provision of the Charter Act, 1793-

1)    The Company’s commercial monopoly in the East was renewed for 20 years, with the important provision that private individuals would be allowed to trade to the extent of 3,000 tons of shipping.

2)    The members of the Board of Control and their staff were to be paid out of Indian revenues.

3)    The Governor- General of Bengal and the Governor of Madras and Bombay Presidencies were to have only three members of these Councils. These members were required to be the persons who had resided in India for 12 years at the time of their appointment.

4)    The Commander – in – Chief ceases to be a member of the Governor – General Council unless he was specially appointed a member by the directors.

5)    The Governor- General and the Governors were empowered to exercise their veto ion case affecting in any way the safety, tranquility or interest of British possession in India.

6)    The Governor-General – in Council was to have full power and authority to superintendent, direct and control the presidencies.

7)    The Governor-General, Governors, the Commander-in-Chief and a few other high officials could not go out of India on leave so long as the held the office.

8)    The Governor-General and Council were authorized to appoint Justice of peace in any Presidency.

9)    The Admiralty jurisdiction of the Calcutta Supreme Court was extended to the high seas.

10) The Act reiterated that the policy of non-intervention enunciated by the Pitt’s India Act was to be followed in India, and schemes of conquest and extension were contrary to the wish, honor and policy of the nation.

11) Receiving of gifts by servants of the company was to be considered a misdemeanor.

12)  The civil servants of the company were to be garded in ranks according to seniority of service and promotion to a higher post was to depend upon the length of one’s service. No post with pay of over pond 500 a year was to be awarded to any persin except covenanted servants of the company.

13) The sale of liquor was made subject to the grant of a license and power was given to the Governor-General to levy a sanitary tax in the presidency towns.

The Act was essentially a consolidating measure and its attention struck at points of details. The Act merely re-enacted many of the provision of the previous Acts and extended their application.

JUDICIAL REFORMS OF SIR JOHN SHORE –

            Sir John Shore succeeded Lord Cornwallis in 1793 as Governor-General of India. John Shore introduced some changes in the then existing judicial system.

Changes in 1794 –

1.    Authority of the Courts of Registrar Increased-

The Registrar was sit thrice in a week to try the cases up to a value of two hundred rupees, referred to him by the judge of the Diwani Adalat. Up to rupees twenty-five the decision of the Registrar was made final. However, in such cases the judge of the Diwani Adalat could interfere if he found the decision to be wrong and unjust. If the value of a case exceeded rupees twenty five, appeal could be taken to the Provincial Courts of Appeal directly.

2.    Collectors were allowed Partial Judicial Powers –

The Diwani Adalat was empowered to refer to the Collector, revenue cases involving adjustment of accounts relating to rent for preparing a report and submitting it to the Diwani Adalat for decision. But any account relating to suits in which the Collector or any of his officers, servants, or the Government was a party could not be referred to the Collectors. Thus the Collectors who was divested on all judicial functions under the scheme of 1793, was again given a minor judicial work. He was authorized to decide revenue cases involving the adjustment of accounts for security and report. This provision saved time of the Diwani judge.

Changes in 1795 –

1.    Appeal from the Court of Registrar –

By the scheme of 1795, the appeals from the decisions of the Courts of Registrar were to be taken to the Court of Mofussil Diwani Adalat and not to the Provincial Court of appeal. Moreover, only one appeal could be preferred and not two as before.

2.    Appeal from the Court of Munsiff –

By the scheme of 1795, the appeal from the Munsiff Court lay to Mofussil Diwani Adalt and its decision made final and the appeal to the Provincial Court of Appeal were prohibited. Thus only one appeal from the decision of the Court of Munsif was allowed to the Mofussil Diwani Adalat.

3.    Maintenance of a Register by the Registrar –

The scheme of 1795 provided that the registrar would maintain a register stating therein details about the disposal of cases and cases in arrears. The object of this provision was to strengthen the control of the Sardar Diwani Adalat over the lower Courts.

4.    Revival of the institution of Court Fee –

The scheme of 1795 imposed court fee to discourage litigation and fixed the scales according to which the litigants were to pay them. The fee was not only imposed on the suits to be filed but was levied on the earlier cases also awaiting decisions of the courts. The result was that many pending suits were dismissed for failure to pay court fees.

5.    Introduction of the Adalat System in Benaras –

In the year 1795, Sir John Shore established the Adalat system in the Province of Banaras with the assert of the Raja of Banaras. Banaras province was divided into four districts. A Mofussil Diwani Adalat was established in each district. A Provincial Court of Appeal was established at Banaras. This Provincial Court of Appeal was also to act as the Court of Circuit for the trial of criminal offence, appeals from which went to Sardar Nizamat Adalat at Calcutta. The courts of Registrars and Munsifs were started. Criminal law and justice were to be administered on the lines of Bengal. The jurisdiction of the Sardar Adalats at Calcutta was extended to Banaras too.

Special favour was accorded to Brahmans. It was provided that no Brahman could be punished with death. Instead of death sentence he was to be sentenced to transportation.

BLS LLB - SEM III HISTORY OF COURTS CHAPTER 3

CHAPTER 03

Regulating act 1773                                                            

Supreme Court at Calcutta

Act of settlement

REGULATING ACT:

The company servant made lot of money in India when they went to U.K started to live lavishly and even they bought the seals of house of commas. The population of U.K started to doubt the working of east India Company. The shareholders of the company voted and started to get the big dividends from the year 1676 it was the rule that the company will pay to the British exchequer, 4 lakh pounds every year to retain its territorial acquisition and revenues. The company servants made money started to become rich and company was making losses, so company approach to British government for loan. After this House of Commons appointed a select committee and a secret committee to probe the affairs of company before giving company the loan amount. The report suggested that company should be brought under the British parliament and reports mentioned the evils of company affairs. After the parliament enacted the regulating act 1773 to remove the prevailing evils. Parliament amended the constitution of company brought company under the British parliament with this era of parliamentary enactment started.

PROVISION OF REGULATING ACT:

The term of the directors of east India Company was increased from 1 year to 4 years and provision was made that every year one fourth directors were elected in rotation. The voting power of shareholders was restricted. The company directors were required to lay before the treasury all correspondence from India relating to revenue and before a secretary of state everything dealing with the civil and military affairs o the government of India. The act appointed a governor general and council of 4 at Calcutta.

            They got all the powers civil and military regarding all the company acquisition as well as revenue in the kingdoms of Bihar Bengal and Orissa. Warren Hastings appointed the 1^st governor general and pother 3 came from England. All were to hold office for 5 years but king can remove them if courts of the directors recommended the removal. The Governor general got only one vote and casting vote in case of the Governor general did not get the power to overrule the majority vote because of this other 3 council members always opposed the policies of warren hasting and the Ist 6 years warren hasting found it very difficult to introduced new laws or policy. In the year 1776 one member from the council died and warren became powerful because of casting vote only in the year 1786 Governor general got the right of vote to override the decision of council because of experience they knew that without vote Governor and council fails to show the results and implement policies. The regulating act put the madras and Bombay presidency under the supervision of Calcutta presidency in matters of war and peace. The subordinate presidencies were required send regularly all details of revenue and other important matters to the governor general only in emergency situations subordinate presidencies were allowed to take decisions if required because of necessity. This madras and Bombay presidency always took the decisions without fearing Governor General.

FEATURES OF REGULATING ACT –

1)    Election for Directors

2)    Control over correspondence

3)    Appointment of Governor general and council

4)    Extent of Governor General is power

5)    Bombay and Madras under control of Governor General

6)    Establishment of Supreme Court

7)    Legislative power under the Act of 1773

8)    Prohibition from engaging private trade

9)    Power to punish English servants

10)  Justice of peace

CREATION OF SUPREME COURT AT CALCUTTA –

            King George III on 26 March 1774 issued a Charter establishing the Supreme Court at Calcutta. The Charter appointed Impey as the Chief Justice and Robert Chambers, Stephen Caeser and John Hyde as Puisne (Normal) Judges. In India Supreme Court at Calcutta enjoyed jurisdiction in all type of matters whereas same time in England they got different Courts for each only after the passage of 100 years after the passing of judicature Act of 1873 in England all the different Court came under one.

            Supreme Court consist of Chief Justice and 3 other Judges who were appointed by the King and they were to hold the office during its pleasure only the barrister with the 5 years of minimum expenses was eligible to become the Judge. The court was to be a court of record. The court got the jurisdiction in following Criminal, Civil, Admiralty and Ecclesiastical Jurisdiction.

            In criminal case the court was to act as a court of over and terminal and goal delivery for the town of Calcutta and the factories. The jurisdiction of the court was not to extend to all person of Bihar, Orissa and Bengal. It extended to the servants of Majesty company servants etc.

            Supreme Court was not allowed to hear the cases against the Governor General and Council and exception was crime of Felon or Treason. The appeals from the Supreme Court were made to the King in Council in England.

            Governor General and Council got the power to make the laws and rule but with the condition that all the rules and law must be registered in the Supreme Court did not become effective until they were registered and published in Supreme Court. Any person in India got the power to appeal against such rule within 60 days in the king in council which then set aside such a rule or changes the law. The appeal was to be made in the Supreme Court was Calcutta within stipulated period it was mandatory to send all rules made by Governor General to a secretary of State in England. Any person in England got right to appeal against the rules within 60 days after the rule were published in the England. King in council got the Sue Motto power to change or disallow any rule without appeal within the period of 2 year. This provision of law and rule registration in the Supreme Court made it easy to introduce the new laws and rules which saved the time as now it was not required to take the permission from the England head office of the company.

            The best part of that was Supreme Court reviewed the law before it become the law, the Governor General and council, Supreme Court judges and its officers were not allowed to do any private trade in India as well as they were forbidden to accept any gifts and presents. In the beginning of one of the problem with the regulating Act was that majority terms were not defined properly by the regulating Act and it lead to the conflict between the Supreme Court judges Governor General and Council.

GOOD FEATURE OF REGULATING ACT 1773 AND CHARTER OF 1774 –

1)    The constitution of the company was improved by the Regulating Act.

2)    The Governor General and Council of Calcutta presidency constituted the central executing authority.

3)    The control of the British Government over the company was tightened and made more effective.

4)    The Regulating Act authorized by the British Crown to establish a Supreme Court at Calcutta.

5)    Provisions were made for the maintenance of fair and impartial administration on the company’s settlement in India.

DEFECT OF REGULATING ACT 1773

Trail of Raja Nand Kumar (1775) (The judicial Murder)

Case of Kamaluddin (1775)

The Patna Case (1777-79)

The Cossijurah Case (1779-80)

            Though the aim and objects of the framers of the Regulation Act were very good, many defects came to light subsequently. They were wither due to the inexperience of the policy-makers in Indian affairs or due to defective drafting of the provisions of the Act. The defective drafting of the provisions of the Act resulted in conflict between the Governor General and the members of his council. It also resulted in conflict between the Supreme Court and the Governor –General and council.

1)    Conflict between Governor General and Councilors –

The regulating Act appointed a Governor General and four members of the Council. It was expected that this new set-up would improve the old defective state of affairs. In the first instance, persons, who were to occupy these posts, were also named in the Act. Only one Councilor Richard Barwell and the Governor – General Warren Hasting were appointed from amongst the Company’s servants working in India. They were well acquainted with the Indian political development and the Company’s role in India. The British Parliament made the mistake of sending out to India three Councilors, namely Clavering, Monson and Francis who were altogether new and were ignorant an\bout Indian affairs. They came to India at the instance of some politically influential leaders in England. They were prejudice against Warren Hastings and the Company’s officials in India. Several times Governor – General and Warren Hastings found himself out-voted by the factious majority of the Council. It led to constant conflicts between the Governor – General and Members of his Council on various issues. Such frictions were bound to react on the efficient working of the Governor-General and Council, which was the highest authority in India for policy-making and decision-taking regarding the company.

CASE LAWS –

TRIAL OF RAJA NANDKUMAR (THE JUDICIAL MURDER) –

Raja Nand Kumar, a Hindu Brahmin was a big Zamindar and a very influential person of Bengal. He was loyal to the English company ever since the days of Clive and was popularly known as “black colonel” by the company. Three out of four members of the council were opponents of Hastings, the Governor-General and thus the council consisted of two distinct rival groups, the majority group being opposed to Hastings. The majority group comprising Francis, Clavering and Monson instigated Nand Kumar to bring certain charges of bribery and corruption against warren Hastings before the council whereupon Nand Kumar in march, 1775 gave a latter to Francis, one of the members of the council complaining that in 1772, Hastings accepted from him bribery of more than one Lakh for appointing his son Gurudas, as Diwan. The letter also contained an allegation against Hastings that he accepted rupees two and a half lakh from Munni begum as bribe for appointing her as the guardian of the minor Nawab Mubarak-ud-Daulah. Francis placed his letter before the council in his meeting and other supporter, monsoon moved a motion that Nand Kumar should be summoned to appear before the Council. Warren Hastings who was presiding the meeting in the capacity of Governor-General, opposed Monson’s motion on the ground that he shall not sit in the meeting to hear accusation s against himself nor shall he acknowledge the members of his council to be his judges. Mr. Barwell ,the alone supporter member of Hastings ,put forth a suggestion that Nand Kumar should file his complaint in the supreme court because it was the court and not the council ,which was competent to hear the case. But Monson’s motion was supported by the majority hence Hastings dissolved the meeting. Thereupon majority of the members objected to this action of Hastings and elected Clavering to preside over the meeting in place of Hastings .Nand Kumar was called before the council to prove his charges against Hastings. The majority members of the council examined Nand Kumar briefly and declared that the charges leveled against Hastings were proved and directed Hastings to deposit an amount of Rs.3, 54,105 in treasury of the company, which he had accepted as a bribe from Nand Kumar and Munni Begum. Hastings genuinely believed that the council had no authority to inquire into Nand Kumar’s charges against him. This event made Hastings a bitter enemy of Nand Kumar and he looked for an opportunity to show him down.

FACTS OF THE CASE:-

Soon after, Nand Kumar was along with Fawkes and Radha Charan were charged and arrested for conspiracy at the instance of Hastings and barwell.

In order to bring further disgrace to Raja Nand Kumar, Hastings manipulated another case of forgery against him at the instance of one Mohan Prasad in the conspiracy case. The Supreme Court in its decision of July 1775 fined Fawkes but reserved its judgment against Nand Kumar on the grounds of pending fraud case. The charge against Nand Kumar in the forgery case was that he had forged a bond in 1770. The council protested against Nand Kumar’s charge in the Supreme Court but the Supreme Court proceeded with the case unheeded. Finally, Nand Kumar was tried by the jury of twelve Englishmen who returned a verdict of ‘guilty’ and consequently, the supreme court sentenced him to death under an act of the British parliament called the Forgery Act which was passed as early as 1728.

Serious efforts were made to save the life of Nand Kumar and an application for granting leave to appeal to the king-in-council was moved in the Supreme Court but the same was rejected. Another petition for recommending the case for mercy to the British council was also turned down by the Supreme Court. The sentence passed by the Supreme Court was duly executed by hanging Nand Kumar to death on August 5, 1775.In this way, Hastings succeeded in getting rid of Nand Kumar.

CRITICAL APPRAISAL:-

Chief Justice Impey in this case acted unjustly in refusing to respite to Nand Kumar. No rational man can doubt that he took this course in order to gratify the Governor-General. The trial of Nand Kumar disclosed that the institution of Supreme Court hardly commanded any respect from the natives as it wholly unsuited to their social conditions and customs. The trial has been characterized as “judicial murder” of Raja Nand Kumar which rudely shocked the conscience of mankind. Raja Nand Kumar’s trial was certainly a case of miscarriage of justice.

       The decision of the Supreme Court in the trail of Raja Nand Kumar became a subject of great controversy and criticism for the following reasons.

a)    Charge against Raja Nand Kumar was preferred shortly after he had leveled charges against Warren Hastings.

b)    Chief justice Impey was a close friend of Hastings.

c)    Every judges of the Supreme Court cross-examined the defense witness due to which the whole defense of Raja Nand Kumar collapsed. It was also not legal according to the rules of procedure prevailing at that time.

d)    After the trail, when Nand Kumar was held guilty by the Court he filled an application before the Supreme Court for granting leave to appeal to the King-in-Council but the court rejected this application without giving due consideration.

e)    Nand Kumar applied for mercy to His Majesty but his case was not forwarded by the Supreme Court. The Supreme Court was empowered by the Charter of 1774 to reprieve and suspend such capital punishment and forward the matter for mercy to His Majesty. Earlier in 1765, a native, named Radha Charan Mittre was tried in Calcutta for forgery and death sentence was passed. A petition was sent to Governor Spencer from the native community of Calcutta requesting “either a reversal of sentence or a respite pending an application to the throne”. The prayer was granted and Radha Charan got a free pardon from the King.

f)     Nand kumar commited the offence of forgery nearly Five year ago, i.e., much before the establishment of the Supreme Court. Nand Kumar was sentenced to death under the English Statute of 1729 on a charge of forgery but this Act was not applicable to India.

g)    Under the Hindu Law or the Mohammedian Law, the offence of forgery was not made punishable with death.

In view of the peculiar feature of the trail, as stated above, and the events which took place before the trail, the Judgment of the Supreme Court in Raja Nand Kumar’s case became very controversial. The trail and execution of Raja Nand Kumar shocked not only Indians but also foreigners residing in India. It was considered most unfortunate and unjust. The role of chief Justice Impey became a target of great criticism. On their return to England, Impey and Warran Hastings were impeached by the House of Commons and the execution of Raja Nand Kumar was an important charged leveled against them.

a)    Case of Kamaluddin (1775)

Kamaluddin was an ostensible holder of a salt farm at Hijili on hehalf of Kant Babu. KantBabu was the real farmer. In 1775 Kamaluddin was arrested and committed to prison without bail on the ground that he defaulted payment of arrears or revenue. It was as per the order of the Revenue Council of Calcutta Kamaluddin was committed to prison without bail.

Kamaluddin approached the Supreme Court at Calcutta and obtained a writ of Habeas Corpus. The Supreme Court directed to set him free on bail. The Supreme Court granted the bail and directed that he should not be re-arrested until the actual amount due is ascertained. The judges further directed that Kamaluddin should not be imprisoned again until the real farmer Kant Babu had been called upon to pay the arrears and had proved to be insolvent.

The Members of the Supreme Court expressed their resentment against the action of the Judges of the Supreme Court and stated that the Judges of the Supreme Court were not empowered to take cognizance of any matter relating of the revenue. According to them the Company was confirmed as Dewan of Bengal by the Regulating Act and the Supreme Council had exclusive jurisdiction. The majority of the Supreme Council, therefore, decided to order the Provincial Council to re-imprison Kamaluddin and to pay “no attention to any order of the Supreme Court or any of the Judges in matters which solely concern revenue”. But Governor-General Warren Hastings refused to support the proposed steps of the majority of the Supreme Council.

This case is of historical importance as it reflects on a vital questions relating to the jurisdiction of the Supreme Court over the acts of Company’s servants working in the capacity of Collectors of Revenue. It is clear from subsequent developments that the Council came into serious conflict with the Court. The cause of Kamaluddin was an eye-opener disclosing defective provisions of the Regulating Act due to which the Supreme Court and the Supreme Council came into conflict.

b)   The Cossijurah Case (1779-80)

Raja surendernarainZamindar of Cossijurah was under a heavy debt to KashinathBabu. Though Kashinat Bab tried to recover the money from the Raja through the Board of Revenue at Calcutta his efforts proved in vain. He therefore filed a civil suit against the Raja of Cossijurah in the Supreme Court at Calcutta. He also file an affidavit on 13^th August, 1777 stating that the Raja being a Zamindar, was employed in the collection of revenues and was thus within the jurisdiction of the Supreme Court. The Supreme Court issued a writ of Capias for the Raja’s arrest. Being afraid of the arrest the Raja avoided service of writ by hiding himself. The Collector of Midnapur, in whose district the Raja resided, informed the Council about these developments. The Council, after seeking legal advice from its Advocate-General, issued a notification informing all the Landholders that they need not pay attention to the process of the Supreme Court unless they were either servants of the Company or had accepted the Court’s jurisdiction by their own consent. The Raja was also specially informed by the Council and, therefore, his people crave away the Sheriff of the Supreme Court when that official came with a writ to arrest the Raja of Cossijurah.

The Supreme Court issued another writ of sequestration on 12^th November, 1779 to seize the property of the Raja in order to compel his appearance in the Supreme Court. This time the Sherriff of Calcutta. With a force of sixty or seventy armed force men,marched to Cossijurah in order to execute the writ, they imprisoned the Raja and it is said that the Englishmen outraged the sanctity of the family idol. In the meantime, the Governor –General and Council directed Colonel Ahmuty, commander of the armed forces near Midnapur to intercept and arrest the Sheriff with his party and release the Raja from arrest. Colonel Ahmuty sent Lieutenant Bamford with two companies of sepoysto arrest the Sheriff  with his party. On 3^rd December, 1779 Bamford, with the help of Willaim Swanston, arrested the Sheriff and his party while they were returning and kept them in confinement for three days. Later on, they were sent to Calcutta as prisoners. Council released the Sheriff’s party and directed Colonel Ahmutty to resist any further writ of the Supreme Court.

c)    The case of saroopchand –

Sapoorchand, malzamin for the payment of revenue, was held to have become liable for payment of Rs. 10,000/- as balance of payment. He disputed his liability. Saroopchand contended that he had advanced a loan of Rs. 10,000 to John Shakespeare, a member of the Council. John Shakespeare denied the contention but admitted that there was some financial transaction between them. Saroopchand being unable to discharge his liability the Decca Provincial Council committed him to custody till such time as he shall have paid the amount. On an application for a writ of Habeas Corpus being moved in the Supreme Court, after hearing, the Court held that it was an arbitrary abuse of power. As regards the liability as treasurer, the court held that the revenue council should sue him elsewhere and not decide the claim itself. It stated that the Council had no right to be a judge in its own case and to attempt to secure its claim by arbitrary imprisonment. The Supreme Court, therefore, released Saroopchand on his giving security to appear and answer to any suit which the Company might institute against him in any competent court and to pay all sums of money as were adjudges to be due to the Company.

d)   The case of Gora Chand Dutt –

In the Murshidabad Provincial Council, Gora Chand Dutt filed a suit against MirzaJelles to recover sum due from him Mirza claimed larger sum was due from Dutt. The judgment went against Dutt. Dutt brought a suit in the Supreme Court against Hosea, Chief of the decree. Dutt contended that the proceedings of the adalat were irregular. Though the case went in favor of the Company’s Courts. It did reveal how irregular their proceedings were.

ACT OF SETTELMENT 1781

            Act of Settlement came for removal of the defects of the Regulating Act. The conflict between the Supreme Council and Supreme Court reached to a very serious stage. A petition against the Supreme Court activities in Bengal was submitted to the British parliament by the Supreme Council. Besides a petition signed by Zamindars, the Company’s Servants and other British subjects inhabiting Bengal was also sent to the British Parliament against the Supreme Court. British Parliament against the Supreme Court. The British parliament appointed a parliamentary committee to make inquiries into the matter and prepare a report. The committee prepares report on the conflict between the Supreme Council and Supreme Court in 1781. On the basis of this report, the British parliament passed an Act in 1781. This Act is known as settlement Act, 1781.

            A survey of the history of 7 years from 1774 to 1780 shows that the provision of regulating Act 1773, and the Charter of 1774 created many problems and conflict. The chain of events and the trail of the Cossijurah case pointed a\out the serious growth of conflict between the judiciary and executive. Not only the Governor- General and Council and the inhabitants of Bengal, also submitted their petitions to the King in England.

SALIENT FEATURE OF ACT OF SETTELMENT 1781 –

            The Act of 1781 was passed in order to explain and amend the provisions of Regulating Act, 1773. Some important provisions of the Act of settlement may be briefly summarized as follows:

i)             The Act declared that the Governor-General and Council have immunity from the Jurisdiction of the Supreme Court for all things done or order by them in their public capacity and acting as Governor-General and Council.

ii)            The Governor-General and Council and any Peron acting under their orders had no immunity before English Courts.

iii)           Revenue matters and matters arising out of its collection were excluded from the jurisdiction of the Supreme Court.

iv)           English law was not applicable to the natives. Hindu and Mohammedan personal laws were preserved in matters relating to succession and inheritance to lands, rents, goods and in matter of contract and dealings between parties.

v)            Where parties were of different religion their cases should be decided according to the laws and usages of the defendants.

vi)           The Supreme Court was empowered to exercise its jurisdiction in actions for wrongs of trespass and in civil cases where parties had agreed in writing to submit their case to the Supreme Court.

vii)         It was also provided that the Supreme Court would not entertain case against any person holding judicial office in any country courts for any wrong inquiry done by his judicial decision. Persons working under the authority of such judicial officers were also exempted.

viii)        The Parliament recognized Civil and Criminal Provision Courts. These Company’s Courts were existing independently of the Supreme Court. It was one of the most important provisions of the Act of 1781 as it completely reversed the policy of the Regulating Act.

ix)           The Act provided that the Sardar Diwani Adalat will be the Court of Appeal to hear appeals from the country courts in civil cases. It was recognized as Court of Record. Its judgment was final and conclusive except upon appeal to the King-in-Council in civil cases involving Rs. 5000 or more. Sardar Diwani Adalat was presided over by the Governor-General and Council was also empowered to hear and decided cases or revenue and undue force used in the collection of revenue.

x)            The Act of 1781 authorised the Governor-General and Council to frame Regulations for the Provincial Council and Courts.

BLS LLB - SEM III HISTORY OF COURTS

            Warren Hasting was the Governor of Madras. He was transferred to Bengal in 1772. As Governor of Bengal, Bihar and Orissa, he prepared the First Judicial Plan in 1772. It was the first step to regulate the machinery of administration of justice. The plan being a land mark in the judicial history became famous as “Warren Hastings Judicial Plan of 1772”

            Warren Hasting was appointed as Governor of Bengal, he started his efforts for eradicating the evils in the administration of the justice and revenue collection. He abolished the system of “Double Government” and executed the Diwani functions through the Company’s servants. He appointed a committee consisting of Governor and four members of his Council to find out the causes of the evils in the existing judicial administration and revenue collection. The committee was also to prepare a plan for the administration of Justice and revenue collection. The committee under the Chairmanship of Warren Hastings prepared the First Plan in 1772. This is known as Warren Hastings Plan of 1772.

            Warren Hasting administrative plan divided territory of Bengal, Bihar and Orissa into number of District. In each district an English servant of the Company was appointed as collector who was to be responsible for the collection of revenue.

            Under this plan the whole of Bengal, Bihar and Orissa were divided into districts. The district was selected as the unit for the collection of revenue and for the administration of civil and criminal justice.

ADMINISTRATION OF CIVIL JUSTICE –

Establishment of Mofussil Diwani Adalat –

            As per Warren Hastings plan a Mofussil Diwani Adalat was established in every district with collector as the Judge. The court was authorized to decide all civil cases like dispute regarding, Properties inheritance, Marriage, Caste, Debts, Disputed Accounts, Contracts, Partnership and Demand of Rent etc. where ever possible religious laws of Muslims as well as Hindus were followed and applied.

            As English servant who was appointed as a collector did not understand the religious laws. So there was Kaziz and Pundits were appointed to help them.

ADMINISTRATION OF CIVIL JUSTICE –

Establishment of Mofussil Faujdari Adalat –

            In every district Mofussil Nizamat or Faujdari Adalat was established to try all criminal cases. The Adalat consisted of Kaziz, Mufti and Moulvies. The Moulvies interpreted the Muslim law of crimes. The Kazis and Mufti gave Fatwa and render Judgment. In this Adalat Collector exercise general supervision over the adalat and saw that no corruption was made in the cases. The judgment was given impartially.

            This Faujdari Adalat was not allowed to handle cases where punishment was death sentence of forfeiture of property of the accused. Such cases went to Sardar Nizamat Adalat for final order.

Establishment of Small Causes Adalat –

            AS NAME SAYS THIS Adalat decided petty cases up to Rs. 10/- the head farmer of the village became the judge. This system was designed to save the travelling expenses of poor farmers as they did not need to travel to the district place for justice.

Establishment of Sardar Adalat –

            Firstly, two courts were established namely Mofussil Diwani Adalat and Mofussil Faujdari Adalat over them two superior Courts were established. Namely Sardar Diwani Adalat and Sardar Nizamat Adalat. The Sardar Diwani Adalat was consisted of Governor and member of the Council and was to hear appeals from Mofussil Diwani Adalat. In the case of over Rs. 500/-. The First sitting of Sardar Diwani Adalat was held on 17^th March 1773. On each appeal of 5 percent was charged. The appeal were to be filed in the Adalat within 2 months from the date of the judgment decree given by the Mofussil Diwani Adalat.

Establishment of Sardar Nizamat Adalat –

            Sardar Nizamat Adalat consisted of an Indian judge known as Daroga- e- Adalat. Who was to be consisted by the chief Kazi, Chief Mufti and Three Moulvies. Nawab appointed all these persons as per the advice of Governor. In case of death sentences punishment deal warrant was made by the adalat and signed by the Nawab as the head of Nizamat.

            The governor and Council supervised this adalat to control and reduce the corruption all cases were ordered to maintain registers and records. Any case older than 12 years was not accepted. District Courts forwarded their records to Sardar Adalat.

            In civil cases when Plaintiff field a case defendant accused person was given only limited time to give answer then examine the witness and give the decree pass the final orders. The plan tried to reduce the expenses of people with this plan officers like Kaziz, Muftis were given salaries. Before this plan judge charged the commission but the new plan abolished this law and introduced the court fee system where fee went to government. After this plan and establishment of Courts for common Indians it became easy to approach the judiciary. Warren Hasting was very intelligent person he purposefully did not take the full charge of criminal justice system and kept the puppet Nizam alive. He did not change the forms and when possible tried to show case that company respects the Nizam like case Nizam got the power to sign the death sentences. In other clever intelligent system Warren Hasting kept alive was that following Hindus Laws for Hindus and Muslim Laws for Muslims. In this Plan Collector got the many powers Collectors was the administrator Tax Collector, Civil Judge and Superior over the Criminal Courts with this Collectors for the unlimited powers and Warren Hasting knew this the Collectors will become corrupt and he already told the Company directors of the Company understood the fear and reality of this Plan. In the year 1773 Company directed the Calcutta Council to withdraw the Collectors as they became very corrupt. After this Calcutta government introduced new plan for the collection of revenue and administration of justice on November 23^rd 1773 and put into force in the year 1774.

PLAN OF 1774 –

            With the plan collectors were recalled from every district in place of collectors an Indian officer was appointed called Diwan or Amil Diwan got the power to collect the revenue as well as act as a Judge in the Mofussil Diwani Adalat. The territory of Bengal, Bihar and Orissa was divided into 6 divisions with their headquarters at Calcutta, Burdwan, Murshidabad, Dinajdore, Dacca and Patna. In each division many districts were created, the complete Bihar came under the Patna Division.

            A provincial council consisting of 4 or 5 English servant of the Company were appointed in each division to supervise the collection of revenue and to hear appeals from the cases decided by the Amil and Indian Diwan. The appeals from this Provincial Council were allowed if the case amount was more than Rs 1000/- the appeal went to Sardar Diwani Adalat. This time also Warren Hasting new that the Provincial Council will do the more harm and more corruption then the collectors. Warren Hasting thought this plan as temporary plan but regulating act was passes in this time and Warren Hasting could not change the Plan until year 1780.

PLAN OF 1780 –

            The Indian Civil procedure Code prepared 1780. Warren Hasting knew that the Judicial Plan of 1774 was not perfect and when Warren Hastings again got the chance and he made changes to the Judicial Plan of 1774 on April 1780. New plan was introduced as per the Plan of 1780. Judicial and Executive functions were separated.

Words and Meanings –

Adalat –

            Functions to do Civil Justice no revenue work.

Provincial Council –

            No Judicial work only revenue related work, collection and revenue cases. But with this plan the problem was that area was vast and Adalat were few to administer those large areas, because of this cases were more time was limited with the judges and this arrears piled up in every Adalat. 2^nd problem was that witness have to travel lot to reach the Adalats. There was only one Adalat in the whole Bihar, because of this people thought is better not to file the cases in courts as filing cases in court meant delayed justice, physical harassment waste of time and money.

            As per the Judicial Plan cases up to Rs. 100/- were referred to the person who stayed near the place of litigant but before this. It was compulsory to file the case in Adlalat and 2^nd problem was that the person who works as a Honorary Judge and he did not get any salary. The Zamindar or Public Officer acted as an Honorary Judge and they charged money for this and also Zamindar got the chance to do corruption as he became the Honorary Judge. Warren Hasting was not satisfied with the Plan of 1780 he always thought about the improving Judicial System in India. The Judicial System of East India Company.

            On 29^th September 1780, Hasting proposed in the Council that Chief Justice, Sir Elijah Impey be requested to accept the charge of the office of the Sardar Diwani Adalat.

            Impey accepted this offer. He remained in sardar Diwani Adalat for a year but he introduced lot of reforms in Sardar Diwani Adalat. Impey drafted many reulations to reform the Adalat on November 3^rd 1780. First reform regulation was passed to regulate the procedure of the Diwani Adalat. As per this rule he was allow to take the help of Hindu Pundits or Muslims Mulla if it was necessary to understand the cause or case.

            Impey compiled a civil procedure code for the guidance of the Sardar Adalat and Mofussil Diwani Adalat, it was the First Code of CivilProcedure to be prepared in India. It was promulgated by the Council on July 1751 in the forms of regulation it was the digest of the Civil rules. The Code consolidated at one place a detailed Civil Procedure. The code contained 95 clauses and with it all the previous regulations regulating to civil procedure were repeated. The code of 1781 clearly defined the functions, power and jurisdiction of Sardar Diwani Adalat.

            This code was translated in person and Bengali language that time in India. Impey was doing great job, but in England, people were not happy with the impey because of following reasons Impey was appointed as the Supreme Court judge to monitor the Company affairs in India. But in India Impey stated to work as the Judge of Sardar Diwani Adalat, accepting this violated the Regulation Act. Because of other job they believed that the Impey would not do the Justice with the job of Supreme Court, because of all above reasons on 3^rd May 1782 in England House of Commons adopted a resolution requesting the Crown King to recall Impey to answer the charge of having accepted an officer and violating the Regulation Act. After this Impey left India on 3^rd December 1782. From the Impey appointment one should learn that whatever post or job may be the concern person must be studied in the profession.

Regarding Criminal Justice System Hasting took following Steps –

            Machinery was created for the purpose of arresting Criminal and bringing them before the Fouzdari Adalat for the trial. This system never existed in India before this a new department office of the remembrance was created at Calcutta to keep watch on the functioning of Criminal Adalats. The department was to work under the Governor General. The head of the department was known as Remembrance of Criminal Courts. All Criminal Courts were required to send periodical reports to this department. Everything was done as per the Muslims Criminal Law and Hastings was not happy with he tried his best but Company heads did not accept his views because of this Criminal Justice System, every one made using corrupt ways.

Merits –

1)    The personal laws of Hindus and Muslims were safe guarded.

2)    District was selected as a unit of the administration of justice and collection of the revenue.

3)    The jurisdiction of the Diwani and Faujdari Adalats were clearly defined.

4)    The judges of these Courts were Englishmen and they did not have the knowledge of the personal laws of Hindus and Muslims, but this defect removed out to the large extent of appointing native law officers.

5)    The commission basis was replaced by the court-fee which was to be deposited with the Government and not with Judges. This changes was made so that Judges ceased to have any personal interest in a particular case. Thus the change was made to promote impartial and fair justice.

Demerits –

1)    Less number of courts –

The head farmers were given power to decide petty cases up to Rs. 10/- in fact it was necessary to have more subordinate courts keeping in view the population and the population and the area of each district.

2)    Concentration of Powers –

Administrative, Tax collection and Judicial in the hands of the Collectors. The Collectors was the Civil Judge as well as Supervisor of the Criminal Courts. It was impossible for the collectors to devote time and energy to regulate all these affairs.