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 Nandkumar16:

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
mentioned that she has presented one lakh fifty thousand rupees to
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
 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 5th 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
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
11
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
proficient in the Bengali language. Two witnesses of Nandkumar were
natives and they did not understand English Language properly, so

18
Stephen, James Fitzjames., “Story Of NandCoomar”.
19
Beveridge., “The Trial Of Nandkumar”
20
Roberts, “The History Of British India”, page no. 188.
12
 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 appointment 21 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
intended to extend the British India Act of 1728 to India upon which
was based the condemnation of Nandkumar.

21
Beveridge, “ The Trial Of Nandkumar”, page no. 218.
13
 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…

“ 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
22
Parliamentary History, volume xxiii, page..1369.
14
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
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”.
23
Keith, A, B., “A Constitutional History Of India” page -77.
15
 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
Bail of three lakh Rupees. The Zamindar (Raja Sunder Narain) went
underground to save himself from arrest and the Writ remained thus
unexecuted.

16
 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.

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
24
“Story Of Thompson And Garret: Rise And Fulfillment Of British Rule In India”...Pp.139-140.
17
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
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:

18
 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
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.
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
19
 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
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

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
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
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
26
Banerjee “Supreme Court in Conflict”.
27
Beveridge, however, maintains that no evidence was taken, but the matter was decided
by the judges themselves.
21
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.,..

“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.

28
In 1770, Bengal was hit by great Famine and one third of its population died of hunger.
22
 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
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
23
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