Introduction:

A great step was taken in the Indian legal history when the supreme

court of judicature was created at Calcutta under the regulating act of 1773.

Bengal, Bihar and Orissa were in the grip of confusion, chaos and anarchy

after the battle of plassey. The company’s servants exploited the people,

amassed the wealth and returned to England. All servants high or low

suffered from one obsession only how to achieve easy fortune in India and

return to England as soon as possible. These people led a life completely out

of tune with the prevailing social moves1.The newly enriched ex-servants of

the company dabbled in British politics by purchasing with their ill gotten

money seats in the House of Commons and thus offended the landed

aristocracy. They purchased stock of the company and sought to influence

its policies. In the meanwhile, the news of the famine led the British public

suspect that something was palpably wrong with the company’s affairs in

Bengal. A realization was dawning on the British politicians that the company

was no longer a mere commercial body, but it had assumed the character of

a political and territorial power in India. As was commented by Edmund

Burke:..

“The east India Company did not seem to be merely a company for the

extension of British commerce, but in reality a delegation of the whole

power and sovereignty of this kingdom sent into the east”.

Therefore it was being realized that the company should not be left

alone outside the sphere of the parliamentary control. Public opinion was

thus slowly crystallizing in favour of the parliamentary interventions of the

company’s affairs.

The climax of the whole affair was reached when due to its financial

embarrassment the company had to approach the British government for a

1 They were nicknamed as nabobs in England for their vulgar display of wealth and overhearing behavior.1

big loan. The paradox of the whole situation was that while its servants were

getting richer, the company itself was fast getting into financial difficulties.

Its shareholders voted increased dividends for themselves from 1767; it was

required to pay a tribute of four lakh pounds every year to the British

exchequer in consideration retaining its territorial acquisitions and revenues.

According to Ilbert, this was the state’s share of the “Indian spoil”2 . In the

prevailing atmosphere, the British government could not possibly give a loan

to the company without probing into its affairs. Therefore, a select

committee and a secret committee were appointed by the House of

Commons for this purpose. In a number of condemnatory reports, these

committees exposed the defects and the deficiencies prevailing in the

existing structure. These reports “drove home the conviction that the

independence of the company must yield to the supremacy of the

parliament”3and thereby parliament consequently enacted the regulating

Act, 1773, to remove the evils of the prevailing system. The Act modified the

constitution of the company and subjected it, to some extent, to the control

of British government and parliament, reorganized the Calcutta government

and established the Supreme Court at Calcutta. With the passage of this Act,

era of royal charters gave place to the era of parliamentary enactments.

Henceforth, parliament enacted a number of Acts, the era of royal charters

gave place to the era of parliamentary enactments. Henceforth, parliament

enacted a number of Acts, usually one Act at an interval of twenty years

each, to renew the company’s charter. On each occasion the affairs of the

company were subjected to close investigation and security and each time

the authority of the crown and parliament was tightened over the company.

2 Ilbert “The government of India”, 39 (1915).

3 Roberts, “History of British India. 182(1958);Keith,A,B., “A Constitutional History Of India”2

The Supreme Court At Fort William _ Calcutta:

An important innovation made by the Regulating Act, 1773, was that

on March 26, 1774, King George (III) issued a charter for the creation of the

Supreme Court of Judicature at Calcutta superseding the judicial System

prevalent there under the charter of 1753 which did not provided for the due

administration of Justice in such a manner as the state and condition of the

company’s presidency of Fort William in Bengal did and must require.

Therefore, the Act sought to provide an improved and more effective Judicial

Tribunal.

Constitution Of The Supreme Court:

The Supreme Court was to consist of a Chief Justice and Three Puisne

Judges4.The Judges were appointed by the British King. A barrister of five

years standing was qualified to be appointed as Judges. The judges were to

hold office during the pleasure of the crown. Sir Elijah Impey was appointed

as the first chief Justice of the Supreme Court5.

The Judges of the Supreme Court were also required to be justice of

peace6 and to have such jurisdiction and authority as the Judges of the Court

of King’s Bench in England had under the common Law. As such, Judges of

4 Later on the number of Puisne Judges was reduced to two.

5 Robert Chambers, Stephen Caesar Le Maistre and John Hyde were the first Puisne Judges of the Supreme Court.

6 A judge who handles minor legal matters such as misdemeanors, small claims actions, and traffic matters in "justice courts." Dating back to early English Common Law,Justices of peace were very common up to the 1950s, but they now exist primarily in rural "justice districts" from which it is unreasonable for the public to travel to the county seat for trials of minor matters. A justice of the peace is usually an attorney, but some states still allow laypersons to qualify by taking a test.

3

the Supreme Court were given the status of the Judges of the Kings bench in

England.

Jurisdiction Of the Supreme Court:

The Supreme Court was empowered to hear civil cases against:-

1. The Company; the Corporation of Calcutta.

2. His majesty’s subjects residing or having any debt or property in

Bengal, Bihar and Orissa; executors and Administrators of such

subjects.

3. Any person employed by, or being directly or indirectly in the services

of the company, the corporation, or

4. Any of His Majesty’s Subjects, any inhabitant of Bengal, Bihar and

Orissa, if he entered into a written agreement with any of His Majesty’s

subjects agreeing that in case of dispute, the matter would be

determined by the Supreme Court and the cause of action exceeds

Five Hundred rupees7.

The court was to be the court of Record8. The court was empowered to

hear Civil, Criminal, Admiralty and Ecclesiastical jurisdiction as well as to

establish rules of practice and process and to do all things necessary for the

administration of Justice (section 13).

7 In the last situation, the court could hear the matter either in the first instance or by way of Appeal from company’s court.

8 In common law jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Judgments of a trial court of record are normally subject to appellate review. In many jurisdictions, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison must be courts of record. In almost all jurisdictions, a court of record will have a court clerk whose primary duty is to maintain the permanent records. Traditionally, a court of record was required to have its own unique seal, which was used to authenticate its judgments and copies of its records.

4

As a criminal court, the Supreme Court was to Exercise the powers of

and act in such manner and form or as nearly as the condition and

circumstances of the place and person admitted of, as a court of Oyer and

Terminer and Goal Delivery9 in and for the town of Calcutta, the factory of

Fort William and the factories subordinate thereto. The court would summon

Grand Jury consisting of His Majesty’s Subjects resident in Calcutta to

present the court Crimes and Offences within their knowledge. For criminal

cases a petty jury consisting of British Subjects and residents in Calcutta was

to be used.

In case where it might be proper to remit the general severity of law,

the Supreme Court was given the power to reprieve or suspend the

execution of any Capital sentence wherein the Judges thought that their was

a proper occasion for mercy until the pleasure of the crown was known. In

such cases, the court was to transmit to the crown the record of the case

with the reason for recommending the criminal to mercy.

As an ecclesiastical court, the Supreme Court was authorized to

exercise an Ecclesiastical Jurisdiction on British Subjects residing in Bengal,

Bihar and Orissa according to the Ecclesiastical law prevailing in diocese of

London. The Supreme Court, therefore, could grant probate of Wills10 British

Subjects dying within Bengal, Bihar and Orissa. The Supreme Court could

also issue Letters of administration for the goods, chattels and other effects

of the British Subjects dying intestate or without appointing an executor to

persons and their estates, according to the rules prevalent in England.

9 A court of Oyer and Terminer in England had a wider jurisdiction than that of Goal Delivery. The former could try all the criminal cases, felonies and misdemeanors, while the latter could try only those persons who had been arrested and lodged in the prison. Both these combined meant plenary criminal Jurisdiction.

10 The proof before an officer appointed by law, that an instrument offered to be recorded is the act of the person whose last will and testament it purports to be. Upon proof being so made and security being given when the laws of the state require such security, the officer grants to the executors or administrators cum testamento annexo, when there been adopted, but provision is made for perare no executors, letters testamentary, or of administration.

5

The Supreme Court was also to be the court of Admiralty for Bengal,

Bihar and Orissa to hear and try in the same way as the Admiralty Court in

England. It was to hear all “causes civil and maritime” and “all maritime

crimes” committed upon the high with the help of a petty Jury consisting of

British Subjects resident in Calcutta. The maritime Jurisdiction was to extend

to His Majesty’s Subjects residing in Bengal, Bihar and Orissa and persons

directly or indirectly in the service of the company or any of His Majesty’s

subjects.

Further to ensure the court of Request11, justices of the peace and

court of quarter sessions12 held by the justice of peace at Calcutta might act

conformably to law and justice, the supreme court was to Supervise and

control these courts in the manner and form as inferior courts and

magistrates of England were subjects to the control of the courts of King’s

Bench, to do so, the Supreme Court could issue various prerogative writs of

mandamus, certiorari, procedendo or error.

Appeals:

Provisions for appeals from the Supreme Court to the King-in-council

were made in the Charter. In the civil cases any appeal lay with king- in-

council if the subject matter in dispute exceeds one thousand pagodas and

the petition seeking the requisite permission was presented to the Supreme

Court within six months from the day the judgement was pronounced. In

criminal cases, the Supreme Court was to have full and absolute direction to

allow or deny permission to make an appeal to king-in-council. Besides king-

in-council reserved the right to refuse or admit an appeal, as a special case

11 This court was created under the charter of 1753 at each presidency town to decide cheaply, summararily and quickly cases upto five (5) pagodas or fifteen (15) rupees. The idea underlying it was to help the poor litigants who could not defray the expenses of litigations at Mayor’s Court.

12 The governor general, members of the council and Judges of the Supreme Court were appointed as the justices of peace with power to hold quarter sessions by the Regulating Act.

6

from any judgement, decree or order of the Supreme Court upon such terms

and conditions as it thought fit.

The court was also empowered to admit such and so many advocates

and attorneys as it thought proper only they were to be entitled to appear,

plead and act on behalf of the suitors in the court. The Governor General and

Members of his Council and the Judges of the Supreme Court were exempt

from imprisonment except for treasons and felony.

Law To Be Administered By The Supreme Court:

The Regulating Act of 1773 was silent about the law which the

Supreme Court was to administer and contain no effective provisions to

restrict the Jurisdiction of the Supreme Court over Indians. The Judges

appointed to the court were well versed with English Traditions and were

also learned in English Laws but they were altogether unfamiliar with codes

of Indian Laws, the customs and traditions of the Indian people. Nor did they

care to acquaint themselves with them. Therefore, Justice was administered

by applying the English Law and procedure. According to Cowell,

“This Tribunal, vested with extraordinary powers and so

ludicrously unsuited to the social and political conditions of Bengal,

was not merely to exercise a civil and criminal jurisdiction, wholly

strange and repugnant to the Indian people. It might sit one day on its

common law side and give judgement to a suit and on the next day

might sit on its equity side and restrain that suitor, from proceeding to

execution”13. One of the first achievements of the court was the

hanging of Raja Nandkumar for an Act committed many years before

the court was instituted and in accordance with an English statute

which could never extend to India14.

13 Mill’s, “History Of India”, vol. iv ,page, 223

14 Anand.C.L, “Government Of India” page.14.7

Disaffection Between Government and The Supreme Court:

In the wake of the Establishment of the Supreme Court at Calcutta,

disaffection arose between the government and the Supreme Court mainly

under three heads:

a) The courts exercise of jurisdiction over the revenue officers so as to

punish them for corrupt or oppressive acts done in their official

capacity in the collection of revenue and issuing of Habeas corpus to

liberate those who had been confined for the non-payment of the

revenue.

b) The claim of the Supreme Court to try illegal Acts of the Judicial

Officers of the Company done by them in their official capacity.

c) Issue of writs of Capias against the native defendants residing in

Bengal, Bihar and Orissa to make them appear before the court to

plead to its jurisdiction.

Warren Hasting’s Attitude Towards The Supreme Court:

Before the contest between the Supreme Court and the council came

into the open Warren Hastings’s attitude towards the court was one of the

sympathy and support. Although Hastings called it as “a dreadful clog on the

government” because of some misgivings yet he was pleased with the

appointment of Sir Elijah Impey as its Chief Justice. Hastings characterized

him as the man of “sense and moderation” .

Initially, Warren Hastings’s opinion was that the main defect in the

Supreme Court was that its powers were not universal. His remedy was that

either the Supreme Court must be “armed with a full authority” or its

operation “restricted to the town of Calcutta and the commercial factories

and to British subjects only beyond them”. Warren Hastings declared that

“on any other footing its Jurisdiction will be eluded, or it will be an 8

embarrassment to the Government”15.But when Warren Hastings got back

the leadership of the government through his casting vote after the death of

one of its members of the majority, his attitude towards the court underwent

a great change. Hastings then became bitterly hostile to the Supreme Court

and took decisive action to contain its operation within the town of Calcutta.

This conflict between the Supreme Council and the Supreme Court is brought

about in many cases and one of the most important cases which bring about

the conflict is Raja Nandkumar’s case.

Trail Of Raja Nandkumar 16 :

The case of Nandkumar stands in a class by itself. It brings about the conflict

between Warren Hastings and the majority in the council, on the one hand

and between the Supreme Court and the majority on the other.

Situation In The Background Of The Trial:

1) Case of Queen of Burdwan:- In 1774, the Queen Of Burdwan alleged

that Hastings had taken illegal bribe of sixteen thousand rupees from

her to make her minor son Diwan after the death of her husband.

When the council started hearing of the case, Hastings left the meeting

and refused to listen to anything against himself. The meeting of the

council was adjourned.

2) Case Of Munni Begum:- Munni begum was appointed guardian of the

Nawab. In 1775 it was found by the council of Murshidabad that she

had spent 9, 67,693 rupees which was quite a large sum. Begum was

asked to submit the accounts. In her statement of accounts she had

15 Gleig: “Memoirs Of Warren Hastings”.

16 Raja Nandkumar was once Governor of Hugli under the Nawab Siraj-ud-din Daulah in 1756 and later due to his loyalty to the English Company in 1757 was nicknamed as “Black Colonel” during Clive’s period.

9

mentioned that she has presented one lakh fifty thousand rupees to

Governor General Warren Hastings as gift. The allegation was in a way

proved. Hastings mentioned that acceptance of such gifts was not by

that time prohibited by the parliament.

3) Reason Behind The Nandkumar’s Trial:

Hastings had many enemies. Nandkumar, who was an influential

Brahman of Bengal, regarded Warren Hastings with great detestation and

Warren Hastings also hated him. Nandkumar had been humiliated by the

upshot of the prosecution of Mohammad Raza Khan in which Nandkumar was

an unrewarded tool. Now, at a time when Governor General’s Prosecution by

new councilors was one of the themes of Calcutta discussion, Hastings

Forbade Nandkumar and showed special favour to one Mohan

Prasad(Nandkumar’s arch enemy). Nandkumar found an ally in Fawke, an

Englishman, who was not in company’s employment. On Hastings refusal to

produce his correspondence with Middleton17, charged Hastings for accepting

as bribe, a sum of Rs.1,04,105(one lakh four thousand one hundred five)for

appointing Gurudas as Diwan and from Munni Begum Rs.2,50,000(two lakh

fifty thousand) for appointing her as the guardian of infant Nawab, Mubarak-

ud-din Daulah. Hastings had to admit that she gave him a lakh and a half

when he visited her at Murshidabad, which he (later sir James Stephen)

considered as entertainment money.

In reaction to this Hastings left his chair, declaring all meetings without

him illegal, he refused to be treated as on trail before his own council.The

majority, however, voted clavering into the chair, called in Nandkumar and

decided to go on with the charges. This injured the feelings of Hastings who

finally determined to prosecute the man by whom he was accused with all

weight of his authority.

17 Hastings refusal was either understood or misunderstood because that correspondence would show that he had been guilty of accepting bribes in connection with Rohilla Campaign.

10

Facts Of The Nandkumar’s Case:-

After a few days, Nandkumar along with Fawke Brothers (Joseph Fawke

and Francis Fawke) and Radhacharan was charged and arrested for

conspiracy at the instance of the Governor General Warren Hastings and

Barwell, a member of his council. Warren Hastings being revengeful

manipulated another suit of forgery against Nandkumar which was brought

by Mohan Prasad. In the conspiracy case, the Supreme Court delivered its

judgement in July 1775. Fawke was fined but the judgement was reserved

against Nandkumar on account of the pending case. The council protested

and remonstrated but Nandkumar was tried by twelve British Jurymen who

held him guilty of the offence of forgery. The Supreme Court sentenced him

to death under an Act of 1728 passed by the British Parliament. The

sentence of death was duly executed by hanging him on 5 th August, 1775.

Thus Warren Hastings fulfilled his desire through the instrumentality of his

friend Sir Elijah Impey, the then Chief Justice of the Supreme Court.

Criticism of the Nandkumar’s Case:-

Nandkumar’s trial has always been looked up with suspicion. Macaulay,

Mill and a number of other historians have accused chief justice Impey of

Committing a judicial murder. It has been suggested that Nandkumar was a

victim of Warren Hastings Wrath and Nandkumar was tried ostensibly for

forgery but in reality for his daring to bring corruption charges against the

Governor General Warren Hastings. It is to mention here that Chief Justice

Impey was a good friend of Warren Hastings. It therefore becomes clear that

Chief Justice Impey was rightly accused of having conspired with Warren

Hastings to put Nandkumar to death and his execution was a result of this

conspiracy. This proposition was challenged on the ground that Nandkumar 11

was not only tried by Chief Justice Impey but by the other judges of Supreme

Court also and the whole court with the help of jury held Nandkumar guilty of

the crime of forgery. James Fitzjames Stephen18 stands foremost among the

Historians who have justified the trial on the basis that the trial was held by

four judges and twelve Jurymen, all of whom could not have been in

conspiracy against Nandkumar. Stephen further says….

“Whatever connections Hastings and Chief Justice Impey or either of

them may have had with the prosecution of Nandkumar, it originated

in the usual way”.

Beveridge was trying to establish that trial was not fair19.

There are many grounds that show it clearly that the Supreme Court

did not acted fairly in deciding this case. They are as follows:-

1) It was doubtful whether Supreme Court had Jurisdiction over

Nandkumar who was not a resident of Calcutta and that too in a case

initiated on the complaint of Mohan Prasad, another native, showing

that Warren Hastings prosecuted Nandkumar through a Native.

2) The Judges took the unusual course themselves by cross examining the

defence witnesses and that too very severely as a result20 of which

defence collapsed. Indian witnesses were not conversant with English

Law and procedure and this resulted in the confusion of witnesses.

Beveridge points out that the Judges, Jury and the Council were all

foreigners unacquainted with the language of witnesses and

Nandkumar was himself unacquainted with the courts language. The

interpreter through whom the trial was conducted was not also very

18 Stephen, James Fitzjames., “Story Of NandCoomar”.

19 Beveridge., “The Trial Of Nandkumar”

20 Roberts, “The History Of British India”, page no. 188.12

proficient in the Bengali language. Two witnesses of Nandkumar were

natives and they did not understand English Language properly, so

they could not understand the questions put by the Judges to them.

Thereby defence weakened.

3) Two of the Judges of the Supreme Court were committing Magistrates

also and this fact must have affected the Justice, because it clearly

amounted to violation of Natural Justice. Beveridge points out that

Judges, Hyde and Le Maistre, were disposed to be subservient to Chief

Justice Impey as he had helped in procuring their appointment21 to the

Jury which consisted of obscure men.

4) After convicting Nandkumar an application for leave to appeal to the

King-in-council was also rejected by the Supreme Court. Further the

Charter of 1774 had authorized the court to reprieve and Suspend

execution of a Capital Sentence and recommend the case for mercy to

His Majesty. But this provision was not given effect to by the Supreme

Court although such a case deserved mercy. Denial of permission to

appeal before the King-in Council to Nandkumar was in nutshell, a

blatant disregard of justice, Supreme Court ought to have exercised

this jurisdiction in order to prove its impartiality in the eyes of law.

5) The offence alleged to be committed by Nandkumar was act done in

1770 long before the establishment of Supreme Court. He was thus

tried by an Ex-post facto law in the prosecution was based on the

charters.

6) The Act of 1728 under which Nandkumar was convicted had never

been formally promulgated in Calcutta and the people could not be

expected to know anything about it. The Act was passed by British

Parliament keeping in view the conditions of that country. It was not

21 Beveridge, “ The Trial Of Nandkumar”, page no. 218.13

intended to extend the British India Act of 1728 to India upon which

was based the condemnation of Nandkumar.

7) The alleged crime was not capital offence under Muslim and Hindu

Law.

All these observations of the case go on showing us that there were

mala-fides on the part of judges of the Supreme Court and the fate which

Nandkumar met was due to a pre- determined plan. To sentence an Indian

to death under these circumstances by applying literally an obscure English

law was nothing but sheer miscarriage of justice.

The only proper thing for the court to do was to exercise the power

especially given to it by the charter and no one else, to respite the

execution of the death sentence and refer the case to the King-in-Council for

consideration.

Edmund Burke very correctly narrated the popular view in his speech

on “Fox’s India Bill” that Raja Nandkumar was by an insult on everything

which India holds respectable and sacred, hanged in the face of all his

nation, by the Judge you sent to protect that people hanged for a Pretended

crime, upon an ex-post facto Act of Parliament in the midst of his evidence

against Mr. Hastings22.

The trial of Nandkumar thus, rudely shocked the conscience of

mankind. Lord Macaulay was much critical of his trial and clearly held that

Chief Justice Impey sittings as a Judge, put a man unjustly to death in order

to serve a political purpose.

Nandkumar presented petition to the Council of the following effect

which was translated into English after his Execution and is cited by

Stephen…

22 Parliamentary History, volume xxiii, page..1369.14

“ For the fault of representing at this time a just fact which for the

interest of the King and the relief of the people in a small degrees made

known, many English gentleman have become my enemies and having no

other means to conceal their own action, deeming of destruction of the

utmost expediency for themselves revived an old affair of Mohan Prasad’s

which had formerly been repeatedly found to be false, and the Governor

knowing Mohan Prasad to be a notorious liar, turned him out of his house,

and themselves becoming his aiders and abettors and Chief Justice Lord

Impey and other Justices have tried me by the English Laws, which are

contrary to the customs of this country, in which there was never any such

administration of Justice before, and taking the evidence of my enemies in

proof of my crime have condemned me to death. But by my death the King’s

Justice will let the actions of no person remain concealed; and now that the

hours of death approaches I shall not for the sake of this world be regardless

of the next, but represent the gentleman of the council. The forgery of the

bond of which I am accused never proceeded from me. If I am unjustly put to

death, I will with my family demand Justice in the Next Life. They put me to

death out of enmity and from partiality to the gentleman who have betrayed

their trust, and in this case the thread of life being cut. I, in my last moment

again request that you gentlemen will write my case particularly to the Just

King of England”.

But the prayer was unheard and respite was not granted by the

council. According to Keith…

“The sentence in any event should as a matter of plain duty, have

been respited by the court, but Hastings private secretary intervened to

prevent such action, and the councilors did nothing. No more odious crime

has ever been committed by a British court whether or not on the instigation

of a British Governor General. For Hastings , it had the invaluable result of

showing natives that with him final power lay and a complete veil was drawn

15

over charges which put shortly before the councilors where pressing against

him with such violence. That he refused to continue meetings as Governor

General and denied that they could act without him23”.

Lord Macaulay said that Chief Justice Lord Impey had acted unjustly in

refusing respite to Nandkumar. No national man can doubt that he took this

course in order to gratify the governor General Hastings, three or four years

later, described Chief Justice Impey “as the man to whose support he was at

one time indebted for the safety of his fortune, honour and reputation”.

These words directly refer to the fact that chief justice Impey had assisted

Hastings in Nandkumar case.

The Cossijurah Case:

In this case the dispute between the Supreme Court and the Supreme

Council which began after the Regulating Act reached the crisis. As Lord

North Naylor puts it in the House of Commons, “the judicial and the political

powers were in arms against each other”. This case represented the

breaking point between the government and the Supreme Court in 1779.

Facts of the Cossijurah case:

Cossinaut Babu (Kashinath), a native of Calcutta loaned a large sum of

money to the Zamindar of Cossijurah, Raja Sunder Narain. On the money

remaining unpaid for long and his requests to the Government for help in

recovering the money remaining unfruitful, Cossinaut Babu, brought a suit in

the supreme court against the Zamindar Raja Sunder Narain on 13th of

August 1779, stating that Raja Sunder Narain as a Zamindar was liable to the

court in revenue disputes as he was employed in the collection of revenue

and that the loan documents were executed and the money was advanced to

the Zamindar at Calcutta. The Court thus issued a Writ of Capias warranting

arrest of the Raja Sunder Narain (Zamindar) subject to being released on a

23 Keith, A, B., “A Constitutional History Of India” page -77. 16

Bail of three lakh Rupees. The Zamindar (Raja Sunder Narain) went

underground to save himself from arrest and the Writ remained thus

unexecuted.

The collector of Midnapur, within whose limits area of Cossijurah falls,

informed the government of the situation and stated that the Zamindar was

being prevented from collecting the land revenue. Hastings and his council

consulted their Advocate General as to whether the court was entitled to

pursue private debts?. The Advocate General was very doubtful whether the

few remaining rights of people to whom we have left but little should be thus

invaded24. Advocate General also maintained that the Regulating Act did not

extend the jurisdiction of the supreme court to the Zamindar and therefore

he suggested that the Zamindar of Cossijurah be told that not being

subjected to the supreme Court’s Jurisdiction, he should not appear, plead,

or do any act which might amount on his part to recognize that the courts

authority extended to him. He also advised the government in such cases it

should not employ its power in aid of the court but should leave it to the

court itself to execute its processes. The government , accordingly, gave

notice to the Zamindar as advised , it also published a general notification

informing all land holders and Zamindars that they were subject to the Court

only if they were Servants of the company or had voluntarily assumed its

jurisdiction under a contract with one of His Majesty’s Subjects in case

exceeding five thousand rupees and if they did not fall in any of these

categories, they were not subject to the court’s jurisdiction and therefore

should not pay attention to its process.

The collector of Midnapur was directed by the Supreme Council to

refuse any assistance to the Sheriff’s men who might require in seeing the

writ on the Raja and so the Collector did not provide any assistance to the

sheriff.

24 “Story Of Thompson And Garret: Rise And Fulfillment Of British Rule In India”...Pp.139-140.17

On the writ of Capias being returned, the court proceeded with issuing

a writ of Sequestration of the Zamindar’s property with a view to force him to

appear before it. Sixty men headed by a sergeant of the Court were sent to

execute the Writ. A complaint was brought by the Zamindar that the Sheriff’s

party entered his house, beated and severely injured his servants forcibly

broke open and entered his Zenana Premises, committed outrages upon the

place of religious worship, plundered his effects and prohibited his farmers

from paying their rents. The Governor General and Council intruded the

Zamindar not to recognize the Authority Of the Court or to Submit to its

Jurisdiction and Employed the Military to prevent Execution of the process of

the Court by apprehending the Sheriff’s Officers with all their followers. This

negated the claim of the Court that at least any person alleging that he was

not subject to its Jurisdiction must plead accordingly.

Cossinaut Babu then brought an action for trespass against the

Governor General and members of his Council individually. At first these

persons entered their Appearance in the Court but when they found that

they were being sued for Acts done in their public capacity. They withdraw

their appearance and informed the court that they would not submit to any

process which it might issue against them. They denied that their corporate

acts as the government of the Presidency are done in execution of power in

them by parliament “are cognizable in the Supreme Court” of Judicature or

that they or answerable as individuals in this Court for the consequences of

such acts. The Court took no further action against them though Chief Justice

Impey also sent a small force to Cossijurah. Councils were exempt from the

criminal process by the Supreme Court. They were not exempt from civil

action. The Supreme Court initiated proceedings against the attorney of the

Company North Naylor on the ground that being an Attorney of the Supreme

Court he gave advise to the Government to defy the Courts process and

even the Governor General and Council themselves were individually served

with Summons of the suit of the Decree Holder, Cossinaut Babu, whose 18

process of Execution was disturbed by them. However, the Governor General

and members of his council appeared firstly but later refused to submit to

the Jurisdiction of the court for Acts done by them in their public Capacity.

Criticism Of Cossijurah Case:

As the Government violently interfered with the normal working of the

court because it had asserted an unwarranted Jurisdiction over the

Zamindars who were not subject thereto under the Act or The Charter. This is

however, incorrect. This was the result of misinterpretation of the Supreme

Court’s position. At no time the Supreme Court said that Zamindars were

subject to its Jurisdiction. The Courts position was that there might be some

other circumstances making the Zamindars liable to its Jurisdiction e.g., a

Zamindar may be in the Service of the Company and then he would be

subject to the Courts Jurisdiction and he would not be exempt from it merely

he was a Zamindar.

The issue of Cossijurah was different. It related to the preliminary plea

regarding the Supreme Court’s Jurisdiction. The Supreme Court had a choice

to decide about its jurisdiction with respect to Zamindars.

The Zamindar of Cossijurah could have appeared before the Court and

pleaded to its Jurisdiction which would have been accepted by the court and

thereby stopping it from taking any further action against him. However, the

Zamindar took a different action as he was encouraged by the Government.

On the plea that Collection of Revenue was suffering, the Government

resented to show of force to stop the Court’s process. This conduct of the

Court was definitely reprehensible.

On explanation for the behavior of the Government in this case was

that Government did not like the Supreme Court should touch the Zamindar

for that interfered with the collection of revenue. But there is another

19

explanation for the Governments conduct, it is that Government did not want

the Court to pronounce upon the status of the Zamindars as such A

pronouncement would have deeply affected the revenue Collection whether

the court Verdict was favorable or unfavorable to the Zamindar25.

The Courts Jurisdiction was not general but personal and so it was

necessary to decide before the case could proceed further whether the

defendant was subject to its Jurisdiction or not. And this could properly have

been decided by the Court alone. When the Defendant (Raja Sunder Narain)

would have appeared before it and placed all the relevant materials before it

to decide, if the question of Jurisdiction was left to each individual to decide

as the Council contended then the Court would become a complete non-

entity as no one would like to appear before it.

Therefore, the Governments Position and its show of force was

indefensible, it should be noted here that the Courts process was in itself a

great evil for the Indians generally. In the Cossijurah’s case, the Court

started with issuing a Writ of Capias with a bailable clause but the amount of

bail was kept at a very high figure i.e., Rs. 3 lakh. It was not easy for the

people to arrange for the necessary Bail. In most of the cases the Defendants

were put behind the bars till their plea to the Courts Jurisdiction would be

accepted and they would remain in prisons for few months and even if at last

the defendant were declared not to fall under the Courts Jurisdiction they

would have suffered badly in body, money and reputation by remaining in

prisons. The Court could have done something to alleviate the Situation

through its rule making power. It had merely introduced the system of the

plaintiff filing an affidavit to show, and on what facts, the defendant was

25 If court held the Zamindar in service of the company court could have claimed check oppressive practice committed by them in Revenue Collection and thereby effecting revenue Collection for Government on the other hand if court decided that a Zamindar is absolute proprietor of his Zamindari, then the Zamindars would get the medium through the court to check excesses committed towards them by the Government itself. They should have resisted their removal from their Zamindari’s at Government’s Will. Government thus wanted to evade any enquiry into the status of Zamindars.

20

liable to its Jurisdiction. The Affidavit would be examined by the judge only

then would be a Writ of Capias issued. This however was not an effective

safeguard against the misuse of courts procedure by unscrupulous litigants.

It could have mitigated the amount of bail or prevent imprisonment as far as

possible. Arrest on the mesne process was beyond all questions. One of the

most oppressive points of the law of England and its introduction into India

was indefensible. Banerjee had ascribed the system of mesne process to a

desire on the part of the Judges to increase their power and Patronage

through increase in the Work of the Court26.

Conclusion:

It is, therefore, submitted here that the Nandkumar’s Trial , disclose

the early notion of the Supreme Court as regards the operation of the

applicability of the English law to Calcutta . The supreme court was of the

view that the statute of 1728 under which Nandkumar was sentenced to

death, was applicable to Calcutta, giving rise to a proof of question whether

an English statute have been made applicable to the presidency town of the

Calcutta or not and according to modern view it depended upon the two

important questions .viz.,

1. Whether the statute suited to the conditions and environment of the

town concerned, and

2. What was the date on which the English Law was made introduced

there?

To consider the first question, under the charter only that portion of

English Criminal law which was suitable to the conditions of the colony which

would be introduced there. The Question therefore was whether the Act of

1728 making forgery a capital offence in England suited the conditions

prevailing in Calcutta at that time. The Court specifically deliberated on this

26Banerjee “Supreme Court in Conflict”.21

question and laid down that … The Town of Calcutta enjoyed a great

commercial importance and that condition which made the Act necessary in

England existed in Calcutta also and so the law suited

Calcutta27.Chambers,J., was doubtful on this point but Chief Justice overruled

him by saying that he has always recognized Calcutta to be greatly

commercial. But it was questioned by Beveridge that the act in question was

not applicable to any town in Scotland or America and Calcutta could not at

the time be regarded more commercial than any of the town in Scotland and

America. He also pointed out that the question of Calcutta being commercial

should have been considered with reference to 1770 when the document in

question was alleged to have been forged28.

With respect to the second question, the Charter of 1726 introduced a

Mayor’s Court, not a Court of Company, but that of the king of England in

Calcutta. The law to be applied was law of England. It was implied from the

terms of terms of Charter and it was accepted that it introduced into the

Presidency towns the law of England both common and statute law as it

stood in 1726. Again the question was whether the subsequent Charter of

1753 and 1774 introduced English law into Calcutta. This question was

neither raised nor decided by the Supreme Court but it was held by the Court

that English law was introduced by 1726 and had also been introduced in

India from time to time. On this basis, Nandkumar was sentenced to death

under the Act of 1728.However this action of Supreme Court has been

severely attacked by many later critics who have held that the English law

was finally introduced in 1726 and not thereafter. Thus, in their view, the Act

of 1728 could never be taken in force in India until and unless it was

especially extended to this country and the fact is that it was never

promulgated in Calcutta. According to Keith, A.B.,..

27 Beveridge, however, maintains that no evidence was taken, but the matter was decided by the judges themselves.

28 In 1770, Bengal was hit by great Famine and one third of its population died of hunger.22

“It is clear that the provision of English statute of 1718 for making

Forgery a capital Offence was not legally in force in India”.

Thus it can be concluded here that both the trial and Conviction of

Nandkumar was illegal. The Supreme Court had committed a judicial murder

which the history could never forgive.

As far as Cossijurah case is concerned the crux of the case was given

by Sir James Stephen who said:

“The real ground of the quarrel between the Supreme Court and the

Supreme Council went far deeper than any of the topics of Grievance on

which so much has been said. The Supreme Court held, as they could not but

hold, that everyone in Bengal, Bihar and Orissa was subject to its Jurisdiction,

to this extent that he was bound, if sued in the Supreme Court to appear to

plead to the Jurisdiction. The whole contention of the council of the Supreme

Council was not so and if anyone not being an English born Subject or in the

pay of the Company was sued in Supreme Court he was justified in taking no

notice of its process”.

It means it was for the Defendant to judge for himself whether he was

amenable to the jurisdiction of the court or not. It may be said that the

conduct of the Government in this case was reprehensible. If they had

thought that the conduct of the court went beyond its legislative power, they

ought to have taken the straight forward legal course of getting a direct

decision from the court upon the question in which they were directly

interested and testing its correctness by an appeal to the King-in-Council but

instead of lawful means they resorted to violence and lawlessness.

Therefore, it is hereby submitted in the light of the above given

observations that the Supreme Court did not exhibit a very healthy tendency

conducive to the protection of interests of Indians against the oppression of

the servants of the company. It showed an anomalous character of the 23

Supreme court in so far as it is exercised jurisdiction over Indians. The

Supreme Court applied harsh English laws to the Indian conditions which

proved a disaster.

It was deemed necessary that the difficulties emerging out of these

cases ought to be removed. Therefore, a petition signed by principal British

Inhabitants of Bengal was sent to parliament against the exercise of powers

by the Supreme Court. Thereby the ultimate result was the Act of 1781, one

of the objects of which was to provide relief to certain persons who were

imprisoned at Calcutta and to indemnify the Governor General and the

members of his Council and all the Officers who acted under the orders of

the Government in interfering with the process of the Supreme Court. The

Act Of Settlement, 1781, was passed to settle many Controversial issues as

to the jurisdiction of the Supreme Court and as to the relation of the

Supreme Court with the Supreme Council and the Company’s Courts.

24