Courts of Small Causes

There are courts known as courts of small causes, which in presidency towns such as Delhi, Bombay, Calcutta and Madras are governed by the Presidency Small Causes Courts Act 1887. Small Causes courts have jurisdiction in any locality where the value of the subject matter is small, for example in Delhi suits valued at Rs. 1,000 and in Bombay suits of up to Rs. 10,000 can be heard by such courts. These values are fixed by the state government from time to time.

           The District Judge exercises administrative control over all civil courts within the local limits of his jurisdiction. They also hear appeals from the orders and decrees of the Subordinate Judges. However, Civil Courts do not have jurisdiction over matters which have been specifically excluded by various enactment passed by the Legislature such as disputes under the Industrial Disputes Act, the Workmen's Compensation Act, the Motor Vehicles Act, etc. Civil Courts also have no jurisdiction to try land matters which are solely triable by the Revenue Courts, as well as suits and disputes as described in the Land Revenue Codes of various states.

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Civil Courts- Hierarchy and Procedure

The High Court is the highest in every state for the adjudication of disputes. High Courts  have civil/criminal, original and appellate jurisdiction. When such original jurisdiction has not been conferred upon High Courts, all suits are to be filed in the District Courts which, under the Civil Procedure Code, are established in every district of a state.

There is a three tier system of Civil Courts in every state. At the lowest end is the Sub-Judge/Subordinate Judge, third class (also known as Munsif ) and the Sub-judge, second class. In actual fact, they constitute one class although the amount in dispute over which they have jurisdiction differs. Above them is the court of subordinate civil judge, first class, whose jurisdiction, so far as money matters are concerned,  is unlimited in most cases. In some such cases such judges have appellate jurisdiction  also. Above the Civil Judge,first class, is the court of the District Judge or the Additional District Judge which is appellate court to hear appeals from the orders and judgement of the Munsif Court and to the limited suit value  that of the subordinate judge i.e. sub-judge. All courts in states are subordinate to the High Court and the District Court is the highest court in every district.

The District Judge/Additional District Judge and the Subordinate Judge of the first class have jurisdiction to heat suits without any limit as to their value. In the case of  subordinate lower courts, their jurisdiction depends entirely on the value of the suit. For the purposes of jurisdiction, this is calculated in accordance with the provisions of the Suits Valuation Act, the Succession Act,etc. can be filed only in District Courts. However, where the subordinate Judges are specifically empowered in that behalf such as under the Guardians and Wards Act and the Indian Succession Act by notification issued by the state government, the proceedings can be entertained and tried by the courts.

As provided in the Civil Procedure Code, every suit is instituted  in the court according to its jurisdiction to hear and in the locality in which the cause of action has arisen. Generally, a suit is filed in the court within whose jurisdiction one or more defendants actually and voluntarily reside or carry on business or personally work for gain or where the cause-fully or in part-has arisen.    

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Officers of the Criminal Courts

Public Prosecutor: The prosecution in all Criminal Courts from subordinate Courts to High Court, on behalf of the state or central government, is conducted by persons known as Public Prosecutors who are qualified advocates appointed by the Central/ or state government and the Courts. There are following classes of public prosecutors:

(i) Public prosecutors appointed by the Central government.

(ii) Public prosecutors appointed by the state government.

(iii) Additional public prosecutors appointed by the state or Central government.

(iv) Special public prosecutors appointed by the Central government.

(v) Special public prosecutors appointed by the state government for special cases and for a particular time.

       The state government, as well as the Central government, also appoints in any district one or more Assistant public prosecutor for conducting prosecutions in the Court of Magistrates. The salary and other allowances are paid by the Central and /or state governments. The Criminal Procedure  Code lays down the qualifications, the manner and method of appointing such prosecutors. They can be appointed for a particular period, their tenure can be renewed, and they can be removed at the end of the terms or before or after following the procedure. The Public Prosecutor is not supposed to be a prosecutor. In theory he /she stands for the state in whose name all proceedings are conducted.it is expected that the public prosecutor will discharge discharge their duty fairly and fearlessly and with full sense of responsibility that attaches to their position. Their object should be to aid the court to arrive at the truth. The ideal public prosecutor  is not concerned with securing conviction or with satisfying department of the Government which he/she represents. Rather, they are agents of justice. There should be, on their part, no unseeming eagerness to grasp at convictions. Their duty as public prosecutor is not merely to secure conviction of the accused at all costs but to place before the court whatever evidence is in their possession,  whether it be in favour or against the accused, and to leave it to the  court to decide upon such evidence whether the accused had or had not committed the offence with which he has been charged. Public Prosecutors are officers of the court and like any other advocate practising before the court, they also owe an obligation to the court to be fair and just. They are supposed to prosecute with earnestness and vigour and are bound to assist the court with fair and considered view and fair exercise of judgement.

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Powers of Executive Magistrates

The primary distinction between Judicial and Executive Magistrate lies in the mode of their appointment and responsibility:

(i) While Judicial Magistrates are appointed by the High Court, Executive Magistrates are appointed by the state.

(ii) while all Judicial Magistrates are subordinate to and under the control the Sessions Judge through the Chief Judicial Magistrate, and under the ultimate control and supervision of the High Court, Executive Magistrates are appointed are subordinate to the District Magistrate, the latter being obviously under the administrative control of the state Government.

                However, any order made by an Executive Magistrate is subject to the revisional jurisdiction of the High Court or a Sessions Judge.

       The powers which are conferred on Executive Magistrates under the new Code is administrative and are, at best, quashi-judicial. For example:

(i)  arrest for offences committed in his presence;

(ii) control over persons arrested without warrant by the police;

(iii) execution of warrant under orders of the court;

(iv) power to require the postal authority to deliver any document necessary for investigation, etc.;

(v) issue of search warrants and to direct search in his presence;

(vi) compelling the restoration of abducted woman;

(vii) ordering security for keeping the peace in cases other than on conviction, ordering imprisonment in default of security;

(viii) prohibitory orders in cases of nuisance or apprehended danger or dispute as to immovable property or dispute relating to land or water;

(ix) to hold inquests into cases of suicide, accident or suspicious death;

(x) power to issue commission for examination for examination of witnesses;

(xi) making complaints;

(xii) affidavits may be sworn before any judge or Magistrate;

(xiii) power to hold local inspection;

(xiv) transfer or withdrawal of any case under section 411;

(xv) disposal of property seized by police which is not produced before a Criminal Court;

(xvi) discharge of sureties under section 444 of the Code of Criminal Procedure, 1973;

(xvii) power to forfeit bonds and impose penalty, under para 2 of section 446(1) read with section 107 of the Code of Criminal Procedure, 1973;

 

 

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Power of a Chief Judicial and a Chief Metropolitan Magistrate

  In addition to whatever is stated above these powers are:

(i) To define the local jurisdiction of Judicial Magistrates;

(ii) To control and supervise the work of other Judicial Magistrates who are all subordinate to him and to distribute business among them;

(iii) To determine claims or objections to property attached or to make it over for disposal to any other Judicial Magistrate;

(iv) To require the postal authority to deliver postal articles necessary for investigation, etc., and to grant warrant to search for such articles;

(v) To release persons imprisoned for failure to give security;

(vi) To make over to a subordinate Magistrate for trial any case of which he or she has taken  cognizance or to transfer a case from any Magistrate who has taken cognizance of it to another Magistrate, on application of the accused;

(vii) To receive from another court or Magistrate, a commission for the examination of a witness within his jurisdiction.

(viii) To receive a case from another Magistrate if he/she if of the opinion, upon the evidence, that the case should be tried by the Chief Judicial Magistrate or where the trying Magistrate cannot pass a sentence sufficiently severe;

(ix) To withdraw or recall any case which he /she has made over to any subordinate Magistrate. 

   Earlier the same topic  just before the topic " Maximum sentences which different classes of courts can pass"has only three points so the present is in the complete form.  

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Maximum Sentences which different classes of Courts can pass

Courts                                                      Maximum

(i) High Court                                     Any sentence authorised by law (S.28(1)).

(ii) Sessions Judge or Additional Sessions Judge ... Any sentence authorised by law, Sentence of death passed by such judge shall be subject to confirmation by the High Court.

(iii) Assistant Sessions Judge...                     Any sentence authorised by law other than a sentence of death, imprisonment for life or imprisonment for a term exceeding ten years.

(iv) Chief Judicial Magistrate and Chief Metropolitan Magistrate...     Any sentence authorised by law other than a sentence of death, imprisonment of life or for a term exceeding seven years.

(v) Metropolitan Magistrate or Magistrate of first class...    Imprisonment for a term not exceeding three years; fine not exceeding Rs. 10,000 or both.

(vi) Magistrate of the second class and Special Judicial Magistrate....   Imprisonment for a term not exceeding one year; fine not exceeding Rs. 5,000 or both.

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Power of a Chief Judicial and a Chief Metropolitan Magistrate

 In addition to whatever is stated above these powers are:

(i) To define the local jurisdiction of Judicial Magistrates;

(ii) To control and supervise the work of other Judicial Magistrates who are all subordinate to him and to distribute business among them;

(iii) To determine claims or objections to property attached or to make it over for disposal to any other Judicial Magistrate;

       

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The functions of the Judicial Magistrate or Metropolitan Magistrate

                     The functions of the Judicial Magistrate or Metropolitan Magistrate under the present set-up can be summarised as follows:

(i) Prevention of offences: The power to require security for keeping the peace on conviction; in other specified cases, to imprisonment in default of security.

(ii) Order: For maintenance of wives, children and parents unable to maintain themselves.

(iii) Power in relation to investigation: power to order a police officer to investigate a non-cognizable cases or a cognizable offence of which he has taken cognizance to hold investigation or preliminary inquiry on receipt of the report of a police officer under section 157; to record confessionals statements made in the course of investigation; to police and to authorise detention of arrested persons pending investigation; to stop investigation where it is not concluded within six months; to receive the accused for trial along with police reports.

(iv) Power to take cognizance of offences: There cannot be a trial of any offence unless it has been taken cognizance of by a Judicial Magistrate. Broadly speaking, a Magistrate who has no power to try a case or commit it for trial is not competent to take cognizance.

(v) Power to commit a case for trial by a court of Sessions: When the offence of which the Magistrate has taken the cognizance is such that it can only be tried by a Court of Sessions, he must commit the case to that court for trial.

(vi) Power to try a case: Cases other than those exclusively triable by a Court of Sessions are triable by a Judicial Magistrate under different procedures, according to gravity of the offence: (a) Warrant (b) Summons, and (c) Summary procedures.

                       Where an offence is triable by a Magistrate of the first or second class, is determined with reference to the First Schedule to the Criminal Procedure Code. The expression 'any Magistrate' of the First Schedule, against certain offences- for example, Section 461-462 Indian Penal Code-means a Judicial Magistrate either of the first or second class; Executive Magistrate has no power of trial under the new code.                         

 

 

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Revision

Under Section 397(1) r/w section 401 of the Criminal Procedure Code the High Court has the power of revision over all Executive and Judicial Magistrates and Courts of Sessions; the Sessions Judge has revisional authority over the Assistant Sessions Judge, and all Executive and Judicial Magistrates

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The respective fora for appeals

The Table below shows the respective fora for appeals from various categories of Criminal Courts

Trial Court                                                  Appellate Court

(i) High Court                        (a) from conviction in extraordinary criminal

                                                            Jurisdiction, Supreme Court;

                                           (b) from conviction and sentence to death in cases

                                                withdrawn to itself Supreme Court under     

                                                 Article 134 (b) of the Constitution; in other                                                                                                                                                                           

                                                Cases, the Supreme Court under the Supreme

                                                Court (Enlargement of Jurisdiction) Act;

                                              (C) other cases, on certificate, under Article, 134

                                                    (1)(c); on leave of the Supreme Court under

                                                      Article 136 of the Constitution; subject to

                                                      Exception in Sections 375(b), 376(a);

(ii) Sessions Judge                         High Court from conviction and sentence of

     and Additional Sessions Judge     imprisonment over seven years;

(iii) Assistant Sessions Judge          Sessions Judge; subject to exception as

                                                       contained in the code;

(iv) Any judicial or Metropolitan Magistrate -  Sessions Judge, from conviction or

                                          sentence subject to exceptions as permitted in                                                 the Code.

                                                                                                                                                                                                                                                                                                                                                                                                                           

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Consecutive and Concurrent Sentences

Where several punishments are imposed for several offences at one trial, the court may direct that the several punishments shall run concurrently, that is to say, the accused shall suffer imprisonment altogether, upto the highest term for the term of several punishments awarded; in the absence of such direction, the several terms will run consecutively, which means that the accused will suffer imprisonment for the aggregate of the several terms, one sentence commencing on the expiry of the other.

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Costs

 In criminal cases no costs are awarded to the prosecution against the convicted person. The costs are borne by the State or parties. However, while imposing fines, the court may direct that a part of fine realised may be given to the injured party by way of compensation. In addition, the court may, if it deems fit, order payment on the part of the court of reasonable expenses of any complainant or witness attending for the purpose of enquiry. In appropriate cases when adjournment is asked for the court may order payment of costs to the prosecution or the accused as the case may be.  

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Procedure

The procedure for criminal trials is provided in the Criminal Procedure Code. Some types of minor offences, such as offences against the Motor Vehicles Act, those relating to weight and measures, petty theft, offences under the Cattle Trespass Act, etc. are tried summarily and disposed of without an elaborate and lengthy trial. The accused is called before the court and the substance of accusation (charge) is explained to him. He is asked to admit or deny the truth of the accusation; and if he denies it, evidence in support thereof is examined at once. Some other offences, also of a minor nature, are tried as summon cases. This means that when the accused is brought before a Magistrate, he is told the nature of the accusation made against him and is asked to offer his explanation. If he admits the truth of the accusation, he may be convicted and sentence forthwith. If he professes innocence, the Magistrate proceeds to the evidence against him. The accused can then make another statement and call for defence evidence. The more serious offences are tried as warrant cases. Once before the court, the accused should get trial, otherwise he will be confined to jail. All offences for which the maximum punishment provided is more than six months' imprisonment are called warrant cases. The procedure for dealing with these is slightly different. When the accused person is brought before the court in a warrant case, the Magistrate does not question him till at least some of the prosecution evidence has been heard. A formal charge, setting out the nature of the accusation or offence is drawn up and the accusation is asked whether he pleads guilty or not. The object of this is to give the accused person full opportunities to refute the charge against him which involves a more elaborate procedure. Also he has too opportunities to cross examine the witnesses appearing for him. The Sessions trials are preceded by a magisterial enquiry which is intended to sift the cases before they are committed to Sessions. Generally, the Magistrates are rather chary of assuming the responsibility of throwing out even a bad case and the preliminary enquiry-or commitment proceeding as it is called usually ends in a commitment to Sessions . A Sessions trial is held by the Sessions Judge.

              After the evidence in the case is recorded and arguments heard, the Sessions Judge addresses the accused. He explains the charge against the accused, comments on the evidence produced by the prosecution and by the defence and then poses certain questions to the accused. After hearing the parties or their advocates, the judge determines whether the accused is guilty or not .If he is not guilty, he is acquitted and if found guilty, the person is given an opportunity  to show cause why a particular sentence as provided in law should not be passed against him.      

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Procedure for committal

After the preliminary inquiry by the Magistrate in a serious offence, of it is found that the offence is of such nature that it should be dealt severely or requires a severe sentence to be awarded which is beyond the powers of the Magistrate, the case is sent to the Sessions court for trial. This is called committing a case to the Sessions Court. A Session Judge (or an Additional Sessions Judge) can award any sentence (imprisonment including life imprisonment as well as fine) authorised by  law including the death sentence. A sentence of death, popularly known as a capital sentence, has ,however to be confirmed by the High Court before  it can be carried out. A Sessions Judge also hears appeals from the orders of the first class Magistrates. Sessions Judges also exercise revisional powers similar to those exercised by the High Court.

             The jurisdiction of every criminal court to try a particular offence is derived from the statute. By consent, the parties cannot confer jurisdiction. The Court of Sessions has jurisdiction once a case has properly come before it, that is, on a legal order of committal. The Assistant Judge can pass any sentence authorised by law except a sentence of death or imprisonment for life or of imprisonment for a term exceeding ten years. Thus serious cases of death, murder, robbery, etc. are tried by the Sessions Judge and not by the Assistant Sessions Judge.

     Finally, at the top of the hierarchy, we have the High Courts in every state which also has power of superintendence over all courts subordinate to it. The main functions of the High Court, however, are to hear appeals, revisions and references. All persons convicted by Sessions Judges are entitled to appeal to the High Court. Appeals by the state against the acquittal also lie only to the High Court when the order of acquittal is passed by a Sessions Judge. A sentence of death must be confirmed by the High Court before it can be carried out-whether there is an appeal by the convict or not. Revision cases sent up by the District Magistrate or Sessions Judges are exclusive concern of the High Court.

            The High Courts are final court of appeal in all criminal matters except in cases where there has been a failure of justice owing to a misapplication of law or a defect in procedure. An appeal lies to the Supreme Court with the leave of the High Court as provided in the Criminal Procedure Code or under  Article 134 of the Constitution of India. In other cases, the Supreme Court has unfettered power to grant special leave to appeal and entertain the appeal under Article 136 of the Constitution of India.

              These are three main tiers in our Criminal Courts. In addition, there are the village panchayats and certain special tribunals which are set up for cases under special Acts (these are dealt with separately).

 

 

                     

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Sessions Court

Immediately above the Magistrate Courts are the Sessions Court presided over by judges known as the Sessions Judges. It is here that more serious offences such as dacoities, all types of homicide thefts by habitual offenders, etc. are tried when these cases are committed to the Sessions Court by the Courts below. Under Criminal Procedure Code, the state government is required to appoint a Court of Session in every session division. Generally, there is one Court of Sessions in every session division though there may be more such judges in the Court. These may be designated as Additional Sessions Judges or Assistant Sessions Judges, and they are Judges of the same court. The Additional Sessions Judge tries all those cases which are assigned by the Sessions Judge. However, an appeal   from the court of the Magistrate can be entertained and heard by the Sessions Judge and on assignment by the Additional Sessions Judge. The place where he is to hold his court is appointed by the High Court. A Sessions Court has both appellate and revisional  jurisdiction over the inferior courts. It also has original jurisdiction to try Sessions cases, but it has no power to take cognizance of such cases( except in the NDPS Act and other Acts in which power of taking cognizance is conferred upon it) unless they are committed by a Magistrate. Such courts deal and decide the cases and appeals as provided in the Criminal Procedure Code.

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Executive Magistrates

Apart from Judicial Magistrates, the state government can appoint in every district as many persons  as it considers necessary as Executive Magistrates and one of them is appointed the District Magistrate. Similarly the state government can appoint a Special Magistrate from time to time in a particular area and give him such powers of the Magistrates as it deems fit. Thus there are five classes of Executive Magistrates:

(i) District Magistrate

(ii) Additional District Magistrate

(iii) Sub-Divisional Magistrate

(iv) Executive Magistrate

(v) Special Magistrate

The state government can also  appoint Executive Magistrates in metropolitan areas. District Magistrates, who are subject to the control of the state government, define from time to time the local limits of the areas within  which Executive Magistrates may exercise their powers.

The state government can appoint Additional District Magistrates. The Chief Judicial Magistrate or Chief Metropolitan Magistrate can pass any sentence except a sentence of death or of imprisonment for life or imprisonment for a term exceeding seven years. In default of payment of fines, the court can pass a further sentence of imprisonment.

A Magistrate exercising first class powers is authorised to award the maximum sentence of imprisonment (simple or rigorous)  for a term of three years of a fine not exceeding Rs 5,000 or both. A Second class Magistrate is empowered and is competent to pass a sentence of imprisonment not exceeding  two years and fine not exceeding Rs 1,000 or both.

A Magistrate of the first class has wider jurisdiction and powers than a second class Magistrate.

 

 

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Our Present-day Criminal Courts

Our present-day courts are made up of law made by the legislature, meaning that their constitution, functions and jurisdiction are also governed by such law. The provisions relating to the establishment of Criminal Courts, from the lowest to the highest, are continued in the Criminal Procedure Code, while the Civil Procedure Code provides for the civil courts.

                                         The division of the law into civil and criminal serves to describe the two categories that are sharply distinguished for the administration of justice, for as a general rule,civil cases are dealt with one set of hierarchy of courts known as civil courts and criminal cases by another known as criminal courts. The terms are not clearly defined any-where, but civil courts closely different from criminal courts. In the plain terms the proceedings of courts in which civil cases are determined are properly termed as civil proceedings and those of courts in which criminal cases are dealt with are known as criminal proceeding s. As civil and criminal proceedings are dealt with by different courts, the procedure and law applicable are also different. The expression ' civil proceedings' covers all proceedings in which a party asserts the existence of a civil right conferred by civil law or by statute and claims relief for breach thereof.

                                          A criminal proceeding, on the other hand, is ordinarily one which, if carried to its conclusion, may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. These proceeding involve the consideration of some charge of crime, that is  of an offence against public law, and that charge is preferable before a court or tribunal which has or claims the jurisdiction to impose punishments such fines, imprisonment, etc. It also includes proceedings to prevent a breach of peace, orders to bind down persons who are said to be a danger to maintenance of peace or order. But is difficult to totally differentiate between civil and criminal proceedings. There are certain proceedings which may be both civil and criminal or which may be neither but may be categorised as 'other proceedings'. The Supreme Court of India in one case observed that " the character of the proceedings' depends not upon the nature of the Tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed and ultimately may be granted. Criminal proceedings, usually called a prosecution, cannot ( with certain exceptions such as a court order to pay fine  if recovered to the injured person or his family or as in motor accident cases) result in any monetary gain to the person injured, for , if the accused is fined, the money goes to the State. A person injured by a crime may start a prosecution but as he can get nothing out of it other than the satisfaction of his outraged dignity, the prosecution is mostly conducted by the State, that is, the police through the public prosecutor. There are certain injuries where both types of proceedings can be initiated, for example, libel/defamation. The plaintiff may ask for damages and if he/she is successful, the defendants will not go to jail; but where there is no chance of getting money from the defendant, criminal proceedings may be initiated. In practice, it is not difficult to distinguish criminal and civil proceedings by the test of 'punishment' or 'monetary compensation'.

                       Present-day criminal courts lie on three separate rungs of an an ascending ladder. In every district, there are courts of Judicial Magistrates of the first class and second class. One of the magistrate of the first class is appointed Chief Judicial Magistrate of the court and the court is designated as the court of Chief Judicial Magistrate by the High Court, which is subordinate to the Sessions Judge. The Chief Judicial Magistrate can pass sentence of imprisonment or impose fine  authorised by law but cannot award death sentences or life imprisonment or imprisonment for a term not exceeding seven years. The Sessions Court is subordinate to the High Court.

                             In metropolitan cities such as Delhi, Bombay, Calcutta and Madras, which were formerly called presidency towns, the courts are known as the Courts of Metropolitan Magistrates and the Chief Metropolitan Magistrate has the powers of a Chief Judicial Magistrate, while the Metropolitan Magistrate has the powers of a Magistrate of the first class. Ahmadabad is also considered a metropolitan city now.

                                                               High Court

                                                Apex Court in the State       

                                       (In every metropolitan city and district)

                            Sessions Judges                              Additional Sessions Judge/

                                                                                    Assistant  Sessions Judge

                                                      Courts of Sessions

Executive Magistrate                                           Chief Metropolitan Magistrate

Municipal Magistrate                                         

Panchayat Courts                                                  Metropolitan Magistrate (in metropolitan city)

                                        Sessions and Additional Sessions Judge

                                           Chief Judicial Magistrate, first class

                                                Additional Judicial Magistrate

                                   Judicial Magistrate, second class (in districts)

Criminal offences are assigned to a different hierarchy of courts according to the nature of the offence and the power of the court to award sentences.

In every district in a state, the High Court appoints a Judicial Magistrate of the first class who is called the Chief Judicial Magistrate. The High Court can also appoint more Judicial Magistrates of the first class, who are designated as Additional Chief Judicial Magistrate. In a sub-Division Judicial Magistrate; except for the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate has and exercises the power given to him by the High Court.

The  High Court can confer powers of a first class magistrate upon any person in a particular case and he or she is known as a special Judicial Magistrate. Such magistrates are appointed for a particular term, generally not exceeding  one year, and  they try such cases as may be allotted to them.These  Additional Chief Judicial Magistrates can exercise jurisdiction in the areas allotted to them.

                                                          

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Criminal Procedure Code 1898 (as replaced by a new code in 1973) 3

Prior to British rule there was no uniform law of criminal procedure for India as a whole. There were separate Acts, very rudimentary in character, which were meant to guide the procedure of courts in the former provinces, presidency towns and Indian states. It was the Criminal Procedure Code of 1882 which gave, for the first time, a uniform procedural law for the whole of British India. This was later supplemented by the 1898 Act. The Code of 1898 was amended from time to time as it was found to be wanting, particularly when India became independent and the Indian states became part of the Republic of India.

             The Law Commission made a detailed study of the Code and gave its 41^st report in September 1969. The Code was fully amended in 1973 and it came into force from 1^st April 1974. The Criminal Procedure Code is mainly an adjective law of procedure. Its object is to provide machinery for punishment of offences against substantive criminal law, for example the Indian Penal Code. In fact, this code is to be read together with the Indian Evidence Act. The machinery provided in the Code is also the same for the local offences under the Acts other than the IPC. The Code however is not merely procedural law. It has provisions which are of nature of substantive law, for example the prevention of offences, maintenance (of children, wife and father and mother), proceeding  under Chapter IX Section 125. Some of the important areas covered by the Criminal Procedure Code are:

(i) constitution of Criminal Courts and offices;

(ii) powers of courts;

(iii) arrest of persons;

(iv) process of compel appearance of an accused and witnesses;

(v) framing of charges;

(vi) committal proceedings;

(vii) trials before the Magistrate;

(viii) court of sessions;

(ix) summary  trials;

(x) appeals, etc.

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Indian Penal Code 1860 (series 2)

The substantive criminal law of India has been codified in the Indian Penal Code (IPC) of 1860 as the procedural law has been in the Criminal Procedure Code 1973 ( Cr. P. Code). The IPC deals specifically with various offences and details what acts will constitute an offence and what will afford an excuse or defence to a charge of an offence. The Penal Code is a substantive law whereas the Criminal procedure Code is procedural; in other words, it provides that all offences under the Indian Penal Code or under any other Act shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code.

          The offences described  in the Penal Code are to be dealt with by criminal courts and every person in India who commits any offence is liable to punishment as provided in the Indian Penal Code and  the manner provided  in the Criminal Procedure. Every person is made liable to punishment, without distinction of caste, rank or creed if the offence mentioned in Code or any Act has been committed in any part of India. A foreigner who commits an offence on Indian soil is also liable to be prosecuted and can be punished if found guilty. However, there is an exception with regard to:

(i) foreign sovereigns;

(ii) ambassadors and members of the diplomatic corps enjoying immunity;

(iii) alien enemies;

(iv) foreign armies;

(v) warships; and

(vi) the President and the Governor under Article 361 of the Constitution of India.

                Apart from the offences mentioned in the Indian Penal Code, there are other offences created by various Acts of Parliament and the state legislature. Unless special courts are created by the Act, all offences, where imprisonment or fine is the punishment, can be tried only by Criminal Courts.  Offences under the Foreign Exchange Regulation Act, the Income-Tax Act, the Customs Act, the Central Excise and Salt Act, the Food Adulteration Act, the Police Act, the Companies Act, etc., are also tried by Criminal Courts under the procedure provided by the Criminal Procedure Code.
                   The Indian Penal Code lists various offences under various heads, for example:

(i) Criminal conspiracy;

(ii) offences against the state;

(iii) offences relating to the Army, Navy and Air Force;

(iv) offences against public  tranquility;

(v) offences by or relating to public servants;

(vi)  offences relating to elections ;

(vii) contempt of lawful authority of public servants;

(viii) false evidence and offences against public justice;

(ix) offences relating to coin and Government stamps;

(x) offences relating to weight and measures;

(xi) offences affecting public health and safety, convenience, decency, and morals;

(xii) offences relating to religion;

(xiii) offences relating to and affecting the human body;

(xiv) offences against the property;

(xv) offences relating to documents and to property matters;

(xvi) offences relating to breach of contract of service;

(xvii) offences relating to marriage;

(xviii) cruelty by husband or relative of husband;

(xix) defamation;

(xx) criminal intimidation, insult and annoyance, etc.

                The Parliament has powers to add and alter/amend any of these offences and can create new offences under the Indian Penal Code or any other Act. Where the creation of a new offence is concerned it is to be noted that no one can be penalised for such an offence if it was not an offence when it was committed.

               The Indian Penal Code also provides the type of punishment   which the various  court can award:

(i) death;

(ii) imprisonment for various periods up to life imprisonment; imprisonment can be of two kinds:

      a) rigorous, that is, with hard labour or

      b) simple;

(iii) forfeiture of property;

(iv) fines.

         The courts can award any or a combination of any of the above punishments depending upon  the offence committed. So, for example, there can be imprisonment with fine, or different sentences of imprisonment for various offences to run concurrently or consequently.

 

 

 

 

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Courts in India- Criminal Courts, Hierarchy and Procedure

It is generally presumed that the earlier form of punishment for acts which can be called criminal was private revenge. Retaliation for an inflicted injury was the personal affairs of the victims or their surviving kin and the community did not usually interfere. Private revenge often led to blood feuds between families, clans or tribes. The resulting loss of life and property sometimes became so great that communities began, very slowly, to restrict private vengeance, and to impose trial and official penalties on offenders.  However, feuds- particularly between powerful families of different communities-continued to be one of the cause of war.

             The religious leaders often played the role of moderators of conflicts and punishers of offences. The threat of divine revenge was used against criminals at a time when the fear of gods and supernatural forces was considerable, magic and religion were found to be effective socio-political tools. Acts that could be said to have adversely affected the well being of the community were considered affronts to the gods, and calamities and disasters such as the plague, earthquakes, etc were seen as expressions of divine anger. If the punishment meted out to wrongdoers was commensurate with the crime they had committed, it was thought to lessen the gods' fury. This was the early origin of lex talionis ('an eye for an eye and a tooth for a tooth'); this could also be said to be the point at which notions of crime and sin began to overlap.

   In addition to this, there was also something called state revenge. It was believed that anti-personal or anti-social behaviour not only offended the gods, but also had its effect on the political stability and the welfare of the social group. The state acted independently of the temple in punishing  the wrongdoer, and it is this state revenge that is the origin of modern justice where the victim has to seek redress from the proper authorities for the wrong that has been done to him/her.

    India produced the laws, or code of Manu, generally thought to date between the thirteenth and ninth centuries B.C. The code specified that part of the judge's functions was to probe the heart of the accused and of witnesses by studying their posture, mien and changes in voice and expression. Thus, this was the first code of law to take account of judicial psychology, something  that can be found in our present- day penal code and  the criminal courts.   

 

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Federal Court

Provincial autonomy was established in India with the coming in force of the Government of India  Act  1935, which introduced responsibility at the provincial level and aimed  at the union of British Indian provinces with the rulers of states in a federation. A federal system, in its actual operation, depends largely upon a just and competent administration of the law as between governments themselves, as between government and the people and as between individual persons. For this purpose, the 1935 Act provided for the establishment of the Federal Court, the forerunner of the Supreme Court of India. This was the second highest court in the judicial hierarchy in India.

                           The jurisdiction of the court was wide and included:

                  (i)  any matter involving the interpretation of Constitutional provisions or the determination of any right or obligations arising there under where the parties to the dispute are

                                    a) Federation and either a province or a state or

                                    b) Two provinces or two states or a province and a state;

                  (ii) any matter involving  the interpretation of, or arising under, any agreement entered into after the commencement of the Constitution Act between the Federation and a federal unit  or between federal units unless the government provides otherwise. (Section 204 of the Government  Act 1935).

Exclusive appellate jurisdiction from any decision given by the High Court or any state court, so far as it involved the consideration of a substantial question of law relating to the interpretation of the Constitution Act or any right or obligation arising   thereunder, was conferred upon it, but such appeal could lie to the Federal Court only with the leave of the High Court, that is, on a certificate under Section 205 of 1935 Act. However, the appellate jurisdiction of the Privy Council remained intact (Section 208 of the Government of India Act, 1935).

                              Similar to that possessed by the Privy Council under Section 4 of the Judicial Committee Act 1833, this court was also conferred the jurisdiction of giving advisory opinion on such questions of law of public importance as may be referred to the court by the Governor General at his discretion. There was also a provision for an appeal to the Federal Court from a decision of any High Court in a Federal state on a question of law relating to the interpretation of the Government of India  Act or ordinary constitutional law.

        After August 1947, when it was felt that the political aspirations of India had been fulfilled, the question of endowing  the Federal Court with full powers and jurisdiction as the highest court came into the forefront. Accordingly from 1^st April 1948, as a preliminary steps towards this, its appellate jurisdiction was enlarged by conferring upon it the power to hear appeals from any judgment, decree or final order of a High Court in a civil case from which direct appeal could have been brought to His Majesty in Council, that is, the Privy Council either with or without special leave. In September 1949, the Constituent Assembly, by Act 5 of 1949, completely abolished the appellate jurisdiction of His Majesty in Council to entertain and hear appeals and petitions from or in respect of any judgement, decree or final order of any court or tribunal within the territory of India including the appeals and petitions in respect of criminal matters, and such jurisdiction was now  conferred on the Federal Court which became the final court for all purposes in India. This effectively rang the death knell for the old concept of the king as final judge in all matters.

 

 

                        

 

 

 

 

 

 

 

    

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Movement for Separation of Judicial and Executive Functions

The legal system introduced by the British was based less on theoretical reasonableness  than on its suitability to local condition and temperaments.  It was necessarily imperfect, and with the awakening of national consciousness there was a steady demand for removal of its more glaring defects. Since the foundation of the Indian National Congress in 1885 there were no matter which received a more general support or more consistent attention than the question of the separation of executive and judicial functions. The culmination of this came in 1899 when, in a memorial addressed to the Secretary of State for India, ten high judicial authorities set forth eight objections which are summarised as follows:

(i) that the condition of judicial with executive duties in the same officer violates the first principle of equity;

(ii) that while a judicial authority ought to be thoroughly impartial, and ought to approach the consideration any case without previous knowledge of the facts, an executive officer does not adequately discharge his duties unless his ears are open to all reports and information which he can in any degree employ for the benefit of the district;

(iii) that executive officers of India, being responsible for a large amount of miscellaneous business, did not have sufficient time to satisfactorily dispose of judicial work  in addition to their existing work;

(iv) that being keenly interested in carrying out particular executive measures, executive officers are likely to come into conflict with individuals, and therefore it is inexpedient that they should also be invested with judicial powers;

(v) that under the existing system Collector magistrates do, in fact, neglect judicial for executive work;

(vi) that appeal from revenue assessments are apt to be futile when they are heard by revenue officers;

(vii) that great inconvenience, expense and suffering are imposed on suitors required to follow the camp of a judicial officer who, in the discharge of his executive duties, is making a tour in his district; and

(viii) that the existing system not only involves all whom it concerns in hardships and inconvenience, but also by associating   the judicial tribunals with the work of the police and of detectives, and by diminishing  the safeguards afforded by the rules of evidence, produces actual miscarriage of justice and creates, though justice be done, opportunities of suspicion, distrust and discontent which are greatly to be deplored.

                              The Government defended the existing system on the grounds that concentration of authority was consistent with the oriental view of administration, that it was economical, and that a separation would everywhere weaken the Collector's position and thereby that of the British Raj.

              

              

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Indian High Courts Act 1911

In 1911 only four provinces in British India were possessed of High Courts of Judicature. Charters to establish High Courts for Bengal, Madras, and Bombay were issued in 1862 and another for the creation of a High Court at Allahabad was issued in 1865. Their Letters Patent were similar in all important respects save that in the case of the High Court at Allahabad no provision was made for the exercise of ordinary original jurisdiction except as regards criminal proceedings against European British subjects. A Chief Court was established for the Punjab in 1866, constituted on the line of Allahabad High Court, but deriving its authority from the Indian Legislature and composed of judges appointed by the Governor –General in Council. Another was created for lower Burma at Rangoon, on the model of presidency High Courts, with original civil and criminal jurisdiction for Rangoon. In all the remaining provinces the highest tribunal was that of the Judicial Commissioner appointed by the Government of India. The Indian High Courts Act 1911 provided for the establishment, if necessary, of additional High Courts in any part of the British India, and in order to meet the needs of the  increasing volume of judicial business raised the maximum number if judges from 16 to 20. A provision was also made for the appointment of temporary additional judges by the Governor-General in Council. In exercise of the powers conferred by the Act a High Court was established at Patna in 1915, and another at Lahore in 1919.

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Some Noteworthy Features of the Administration of Criminal Justice

The following were some of the key features of the system of administration of criminal justice established in this country:

(i) A combination of judicial and executive functions, that is , the function of the judge and prosecutor-were vested in the same officer.

(ii) The differential treatment according to European British subjects and their partial immunity from the jurisdiction of the ordinary courts.

(iii) A general absence of the system of trial by jury.

(iv The existence on the statute book of laws enabling the executive Government to set up special tribunals with special rules of procedure and evidence for the trial, particularly, of offences against State.

(v) Complete control of the executive over the appointments, promotion, etc., of the subordinate judges and magistrates.

(vi) Restriction on the right to the writ of Habeas Corpus. The Code of Criminal Procedure confined the right to the limits of the ordinary original jurisdiction of the High Courts of Judicature at Fort William, Madras, and Bombay and specially forbade the issue of the writ for the benefit of persons detained under the Bengal State Prisoners' Regulation, 1818, Madras Regulation II of 1819, Bombay Regulation XXV of 1827, the State Prisoners' Act 1850, or the State Prisoner's Act 1858.

(vii) Want of legalism and judicial independence even in the High Courts, the highest tribunals of the country, owing to a variety of circumstances such as the provision that the judges were to hold office at the pleasure of the Crown, unlike in English where they were removable only upon an address of both Houses of Parliament; the practice of giving local governments a predominant voice in the appointment of judges, and the existence of a statutory provision that at least one-third of judges must be members of the Indian Civil Service.

(viii) Exemption from the original jurisdiction of the High Courts of the Governor-General, Governors, and members of their executive councils for acts done by them in public capacity, or in respect of any offence not being treason or felony.

(ix) Written  order by the Governor-General in Council which could be placed in full justification of any act in any proceeding in a High Court acting in the exercise of its original jurisdiction, except so far as the order extended to any European British subjects.

 

 

 

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Reconstitution of Criminal Courts under the Code of Criminal Procedure 1872

Reconstitution of Criminal Courts under the Code of Criminal Procedure 1872

A fresh Code of Criminal Procedure repealing the earlier Acts on the subject was enacted in 1872. It was enacted  apart  from the High Court, the Chief Court of the Punjab, and the Judicial Commissioners' Courts in the non- regulation provinces, there should be four grades of Criminal Courts in British India. There were the Court of sessions, the court of magistrate of the first class, the court of magistrate of the second class, and the court of magistrate of the third class. Every province was to be divided into sessions divisions and there was to be a court of Sessions and a Sessions judge for every such division. The local government was empowered to appoint Additional and Joint Sessions judges who were to exercise all the powers of the court but to try such cases only as the local government directed them to try or as the Sessions judge of the division made over to them for trial. The distinction between the three classes of magistrates rested on the kind of sentence they were competent. A magistrate of the first class might sentence up-to the term of two years and impose a fine up to Rs 1,000; a magistrate of second class might imprison up to six months and impose a fine up to Rs 200. The first two might order whipping or include in the imprisonment  solitary confinement, but  such an order could not be made by a magistrate of a third class. Magistrates of all the three classes were to be appointed by the local government and acted in subordination to the magistrate of the district. The local government could divide a district into divisions and place a magistrate of the first class or second class in charge of a division. The Divisional Magistrate was subject to the control of the magistrate of the district, but he, in turn controlled the magistrates in his division. In the non-regulation provinces the local government was empowered to invest the Deputy Commissioner or other chief executive officer of the district with power to try as a magistrate all offences not punishable with death, and to pass sentence of imprisonment for a term not exceeding seven years. The local government was also authorised to appoint in any district special magistrates, or a Bench of magistrates with the powers of a magistrate of the first, second, and third class.

 

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Birth of High Courts in India

A third step taken in the direction of uniformity was to abolish  the Supreme and Sudder Courts and to constitute in their places, in each presidency, one sole court of Appeal  which had control  over all courts, both in the presidency town and in the moffussils. This was done by the Indian High Courts Act 1861 which empowered the Crown to establish, by Letters Patent, three High Courts at Madras, Bombay, and Fort William (Calcutta). The jurisdiction and powers exercised by the Chartered Supreme Courts and the Sudder Dewany and Nizamat  Adawluts were transferred to the High Court. Each one of these High Courts was to consist of a Chief Justice and not more than fifteen judges. Of these, not less than one-third, including the Chief Justice, were to be barristers, and not less than one-third were to be members of the Indian Civil Service. Power was also given to create a fourth High Court was exercised in 1866 when the High Court was established at Allahabad. An Act passed in the same year by the Imperial Legislative Council constituted a Chief Court in the Punjab, on the model of the High Courts, and composed of two or more judges appointed by the Governor-General in Council invested with the highest appellate power and original jurisdiction for the trial of certain civil and criminal cases.  

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Steps to Remove the Parallel System of Jurisdiction

The first attempt to bridge the gulf between these two systems was made in 1813 when by an Act of Parliament, the  Company's Courts were vested with civil jurisdiction over the Europeans in suits brought against them by Indians. But the privilege was only partly attacked since the Act gave Europeans a distinct right of appeal to the Supreme Court instead of the Sudder Court to which an appeal lay in the ordinary course. This invidious right itself was taken away by Act XI of 1836, commonly known as the Black Act. Till 1813 European residents in India were subject to the criminal jurisdiction of only the Crown Courts in the presidency towns. By the Act of that year (53GEO.III.c.155) magistrates in the provinces were empowered to act as Justice of Peace and to have jurisdiction over the European British subjects outside the presidency towns in certain criminal  cases. This authority was gradually extended by the subsequent legislation.

                     Another step towards amalgamation was the establishment, throughout the country, of a uniform system of laws. The codification and simplification of law was one of the greatest reforms effected during this period. The East India Company began by attempting to govern Indians by Indian law and Englishmen by English law but the system broke down for three reasons. In the first place there was difficulty of ascertaining the exact nature on Indian law. Secondly, even where it could be ascertained, it often embodied rules which were repugnant to the ideas and traditions underlying  the English legal system. Thirdly, Indian law was deficient; there were large and important branches of law, such as law of contract, tort, trust, etc for which it supplied insufficient or no guidance. From an early time, therefore there began to grow in India a large body of Anglo-Indian case law and Regulations of the legislatures amending and supplementing Indian laws. Many of their earlier Regulations were directed at removing some of the defects of the Mohamedan criminal jurisprudence. In 1780 the government of Bengal issued a Code of Regulations for the administration of justice and the following year a revised code was issued. Warren Hastings' plan of 1772, which directed that in civil suits regarding marriage,inheritance, etc  the court should follow the personal laws of the parties, was recognised and confirmed by the amending Act of 1781. A Bengal regulation of 1832 provided that in a civil suit the parties to which were of different religions, the laws of their religion shall not be permitted to operate to deprive such party or parties, of any property of which, but for the operation of such laws, they would have been entitled. The principle of Bengal Regulation was extended throughout British India by the Lex Loci Act of 1850 which declared that no person shall beliable to forfeiture of his rights, property, or inheritance, by reason merely of being excluded from his religion or caste. The Bombay Regulations gave precedence to local usage over the written Hindu and Mohamedan law in the determination of civil rights. The same principle was subsequently applied to Punjab by the Punjab Laws Act of 1872. In 1833 the attention of British Parliament was drawn to the unwieldy, confusing, and obscure state of law in British India. The Charter Act of 1833 directed the Governor-General to appoint an Indian law commission to inquire into and report on the state of laws and administration of justice in British India. The work of the Indian law commission of 1834 fell mainly on Lord Macaulay, and the first subject taken up was the preparation of a Code of Penal law. The draft was completed in 1838 but it was not till 1860 that it was passed into law. Two more commissions were appointed, one in 1853 and another in 1861, whose labours resulted in the preparation of several codes of substantive laws and procedure which were, in due course, placed on the statute book and made applicable to all courts and persons throughout British India, superseding the native Indian law on the subjects to which they related. The first edition of the Code of Civil Procedure was passed in 1859, followed by the Code of Criminal Procedure in 1861. These were supplemented by the Indian Succession Act 1865, the Hindu Wills Act 1870, the Evidence and Contract Act 1872, the Specific Relief Act 1877, the Negotiable Instrument Act 1881, the Transfer of Property Act and Indian Trust Act 1882, the Limitation Act 1908, etc. Substantially, the entire criminal law of India was codified, but the codification of civil laws was far from complete. There were three difficulties which stood in the way of codification of Hindu and Mohamedan laws. In the first place great portions of these laws were believed to be of more or less divine origin and legislative interference with them was regarded as being politically dangerous. Secondly, codification would have stereotyped rules which, under the silent influence of social and political forces, were in the process of change. Thirdly, there was no single body of Hindu law that was generally recognised; it differed in different provinces, and was often modified by local or family customs.   

 

 

 

 

 

 

 

 

 

  

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Two Parallel System of Courts

Until 1861 there existed in British India two parallel systems of judicial institutions of entirely dissimilar origin, one in the presidency towns where Crown Courts had been established be Royal Charters and Acts of Parliament, the other in the moffussils where courts were organised by the Company by virtue of the powers derived from the native governments. Until 1834 the former were amenable only to the legislative authority of British Parliament and such Regulations of the Indian government as the Supreme Courts might choose to acknowledge and register. The Moffussil Courts administered Hindu and Mohamedan laws amended and supplemented by Indian legislation and, generally speaking, had no jurisdiction over the Europeans. The Crown Courts followed the English law of procedure and also applied, for the most part, English law except in certain classes of civil suits instituted against Hindus and Mohamedans.

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Privy Council: its Appellate Jurisdiction and Constitution

In 1833 an Act was passed by the British Parliament determining the constitution of the Privy Council as a Court of Appeal. The right to appeal to the king in Council was first granted in connection with the judgements of the Mayor's courts established by the Crown's Charter in 1726.The right was also reserved in reference to the Supreme Court at Fort William and Recorder'Courts (subsequently the Supreme Courts) at Madras and Bombay. In 1781 the right to appeal from the judgements of Sudder Diwani Adawlut of Bengal was also recognised, and Regulation XVI of 1797 limited  this right in point of time to a period of six months from the date of judgement and in point of value to cases where the  amount involved was not less than Rs 50,000 exclusive of costs. In 1818 the right of appeal was extended to the judgements of the Sudder Courts at Madras and Bombay. An order in Council issued in 1838 reduced the amount for the purposes of appeal from Rs 50,000 to 10,000, a proviso which was retained by the Charters of the High Courts in subsequent years. As originally constituted in 1833 the judicial committee of Privy Council consisted of the Lord President, the Lord Chancellor, and such of the Councillors as held or had held certain high judicial offices. By the Judicial Committee Act of 1871 four paid members were added whose place was subsequently taken by the four Lords of Appeal in Ordinary appointed under the provisions of the Appellate Jurisdiction Act 1876. Under the Act of 1883 four members formed the quorum but by a later Act this number was reduced to three.

 

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Provincial Criminal Courts

The plan adopted by Warren Hastings in regard to the administration of criminal justice was the retention of Mohamedam law and tribunals under the general control of the Nawab but subject to the supervision of the Company's Government. The system did not work satisfactorily. The delay in bringing the offenders to justice resulted in increased crime. The constitution of the Criminal Courts was also defective. Lord Cornwallis, by Regulations made in 1790 and 1793, entirely remodelled the judicial system. Courts of Circuits composed of English judges, and of the Qazi and Mooftee, were instituted. The authority of the Nawab Nazim was abolished, and his power s transferred to the Governor-General in Council who formed the Suddar Nizamat Adawlut, the highest of the provincial Criminal Courts. By Regulation II of 1801 the Sudder Nizamat Adawlut was directed to be composed of a Chief Justice and Puisne judges instead of the Governor –General in Council, and by Regulation XII of 1811 the number of these judges was increased. The Circuit Courts failed to provide administration of justice and were consequently abolished in 1829. Their powers were transferred to the Commissioners of Revenue who now became criminal judges in all cases of importance. But the task was found too heavy for them, and accordingly a Regulation of 1831 invested Zillah and city judges with criminal jurisdiction. The Bengal Sessions Courts Act was passed in 1871 which provided for the appointment of Sessions judges and Additional Sessions judges by the local governments in Bengal and northwest  provinces. The Act was a temporary measure and was repealed in 1872.

Judicial institutions similar to those established in Bengal were introduced in the presidency of Madras in 1802. Four Circuit Courts a Court of Criminal Appeal consisting of the Governor and Council were established. The former were established in 1845 and their jurisdiction was transferred to the judges of Zillah Courts.

               In Bombay it was the Magistrates, Zillah judges, and the Court of Circuit who exercised criminal jurisdiction.  A special court also existed for the trial of political offences. Hindus were tried by their own criminal law, Paris and Christians by English law. In1841 it was enacted that political offences should be cognisable by the ordinary courts.

 

 

 

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Provincial civil Court

The Sudder Dewany Adalawut, established at Calcutta and hearing appeals from the Provincial Courts, and the Board of Revenue, consisted originally of the Governor-General and Council. By a Regulation of 1801 it was made to consist of three judges to be selected from the members of the convenanted service, and in 1811 of a Chief Justice and as many Puisne judges as the Governor-General in Council would consider necessary. These regulations had the effect of separation of the executive and legislative from the judicial authority of the State. At the same time Zillah and City Courts for the trial of civil suits in the first instance, and six provincial courts for the purpose of hearing appeals from these were established; their jurisdictions were defined, and judges were directed to act, where no specific rules existed, in accordance with justice, equity and good conscience. There existed at this time five classes of provincial civil courts:

(i)  The lowest in grade were the courts of Commissioners called Sudder Ameens and Moonsiffs, empowered by a Regulation if 1793 to decide civil suits of the value not exceeding Rs 50.

(ii) Register Courts, empowered to try causes for amounts not exceeding Rs 200, when authorised by the judges. Their decrees were not valid until revised and counter-signed by the judge.

(iii) Dewany Adawluts or City and Zillah Courts.

(iv) Provincial Courts, hearing appeals from the courts of the third class.

(v) Sudder Dewany Adawlut, vested with the appellate jurisdiction and general power of supervision over the inferior courts in all suits of the value above Rs 100.

                    Under Regulation V of 1831 several important changes were made. Register courts and the Provincial Courts of Appeal were abolished. Moonsiffs' Courts were empowered to try suits of the value of Rs 300 and to the Sudder Ameens suits could be referred by judges of which the value did not exceed Rs 5,000. Original jurisdiction was given to the judges in all suits exceeding Rs 5,000 in value with an appeal direct to the Sudder Dewany Adawlut.

The system of Civil Courts established by Lord Cornwallis in Bengal was adopted in Madras presidency in 1802. Revenue and Civil Courts were kept distinct. As in Bengal the judiciary in Madras consisted of the Register Courts, Dewani  Adawluts, Provincial Court of Appeal, and the Sudder Court consisting of the Governor in Council. Where the value involved was Rs 45,000 or more, a further appeal lay to the Governor General in Council. By Regulation III of 1807 the Governor ceased to be a judge. In 1826 the heads of villages were appointed Moonsiffs with the power to try suits of the value not exceeding Rs 10. Village Panchayats could also determine suits of any amount within the jurisdiction of the villages. In 1843 the Provincial Courts of Appeal were abolished, and new Zillah Courts established.

                               In Bombay also Civil Courts were established after the Bengal Regulation of 1793. In 1845 the appointment of joint Zillah judges was authorised.

  

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Courts at Bombay and Madras

At Madras and Bombay Mayor's Courts based on the English municipal model existed till 1797 when they were replaced by Recorder's Courts, subject to the same limitations as were imposed on the Supreme Court at Fort William by the Act of 1781. They had jurisdiction over British subjects resident in the territories of the governments of Madras and Bombay or in the native states in alliance with those governments. Courts of request were established by a Charter of 1753. The Recorder's Courts in 1801 and 1823 respectively. The Courts of Request also were superseded by the establishment of Small Cause Courts in 1850.

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Establishment of Supreme Court at Fort William, Calcutta

The jurisdiction of the Mayor's and other Crown Courts in Calcutta did not cover Europeans who lived in the interior; their authority was limited to Calcutta and its dependent factories. In 1773 the Regulating Act was passed by the British Parliament which established at Fort William a Supreme Court of Judicature consisting of a Chief Justice and three other judges who were Barristers of not less than five years' standing and were appointed by the Crown. They had full civil, criminal and ecclesiastical jurisdiction, were empowered to administer the English law to all British subjects and persons in the employment of the Company situated anywhere. Appeal from the judgements of this court lay to the Privy Council, subject to certain restrictions. The Mayor's court at Calcutta was abolished, but the Court of Request continued to exist. The Supreme Court began to apply English rules of law and procedure, regardless of Indian conditions. It refused to recognise the government of Nawab or the authority of his agents and of the provincial courts. The boundary line between the   authority of the Supreme Court, which derived its existence from the Crown, and of the Council which was appointed by the Company, remained undefined.

                     To avoid vagueness an amending Act was passed in 1781 which clearly defined the powers and extent of jurisdiction of the Supreme Court. It provided:

(i) that the Supreme Court is not to exercise any jurisdiction in matters concerning  the revenue or acts done in collection thereof according to the usages of the country or the regulations of the Governor-General in Council;

(ii) that the Governor-General and Council of Bengal are not to be subject, jointly or severally, to the jurisdiction of the Supreme Court for anything counselled, ordered, or done by them in their public capacity;

(iii) that the Supreme Court is to have jurisdiction in all manner of actions and suits against all inhabitants of Calcutta, provided that the matter of inheritance, succession and contracts will be determined by the personal law of the parties, or where one of the parties is a Mohamedan and the other a Hindu by the laws and usages of the defendant;

(iv) that rules and forms for the execution of process are to be accommodated to the religion and manners of the Indians;

(v) that no action will lie in the Supreme Court against any judicial officer of the country courts in respect of any judgement or order of his court; and

(vi) that the existence of civil and criminal provincial courts, independently of the Supreme Court, is recognised; the appellate authority of the Governor –General and Council is also recognised and confirmed; and the Governor-General is also empowered to frame regulations for the provincial courts independently of the Supreme Court.

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Judicial Institutions in Bengal Reorganised by Warren Hastings

In 1771 the court of Directors resolved " to stand forth as Diwan" and bring the administration of revenue and justice under the immediate control of the Company's servants. The following year,Warren Hastings , who was appointed the Governor of Bengal, drew up a report for the reorganisation of judicial and revenue institutions which  was immediately adopted by the Government. Under this plan, in each district moffussil  Dewani  Adawluts, under the supervision of European collectors of revenue, were established and a Sudder Diwani Adawlut or Civil Court  of Appeal presided over by the Governor and members of the Council was instituted at Calcutta. Under the old system zamindars and farmers were responsible for maintaining peace in their estates and, in cases of robbery, they had to produce both the culprits and the property stolen. Hastings set up Criminal Courts or Fauzdari Adawluts, and transferred to these the jurisdiction formerly exercised by the zamindars. " A qazi and a mooftee, with the assistance of two maulvis, appointed to expound the law, sat to hold  trials for all criminal offences. The English collectors of revenue were, however,directed to superintend the proceedings of these courts, to see that the necessary witnesses were summoned and examined; that due weight was allowed to their testimony,and that the  decisions  passed were fair and impartial." The judgements of the provincial criminal courts were appealable to the Sudder Nizamat Adawlut established at Murshidabad and presided over by an officer appointed by the Nawab. These provincial courts derived their authority and jurisdiction from the Mughal Government in whose name the Company acted as the Diwan and were consequently known, as the Company's Courts as distinguished from the Crown's Courts established under the English royal charters.

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British period judicial system (series1)

Though the East India Company had established important trading settlement at Bombay, Madras and Calcutta, during the 17^th century they remained mainly merchants and factory owners who held their possessions by permission of and in obedience to the Mughal emperor (except in the Island of Bombay where they were fully sovereign as it had been ceded to them as dowry). However, from the beginning, English residents in these settlements remained subject to their own laws which were administered by their own officers. The first charter of 1601, granted by Queen Elizabeth, conferred upon the company not only the power to make reasonable laws but also the authority to execute and administer them and impose pains and penalties for disobedience. In 1618 Sir Thomas Roe, James I's ambassador to the Mughal court in India formally secured from the Mughal emperor, with regard to the factory at Surat, privilege of allowing the English residents to refer their disputes for adjudication to their own officers. Charles II's Charter of 1661 empowered the Governor and Council of each factory " to judge all persons belonging to the said Governor and Company or that should live under them in all causes, whether civil or criminal, according to the laws of the kingdom, and to execute judgement accordingly."

The Charter of 1683 gave the Company full power to make peace and war, and also provided for establishing a Court of Judicature to be held at such place or places as the Company might direct. In 1726 the Crown by Letters Patent established Mayor's courts on the English pattern at Madras, Bombay and Fort William (Calcutta), each consisting of a Mayor and nine Aldermen who had the power to hear all civil suits, actions and pleas between party and party. These were declared to be courts of Record from whose decisions an appeal lay to the Governor and Council in important cases a further appeal to the Privy Council in the United Kingdom. The Governor and five seniors of the Council were required to hold quarterly sessions for the trial of all kinds of offences other than treason. In 1753 by Letters Patent, Courts of Request (the predecessors of small causes courts) were established at each of the three presidency towns for the determination of suits in which the amount involved did not exceed Rs 20. Their jurisdiction was restricted only to the Europeans in express terms suits between Indians were not to be determined by the Mayor's courts unless by the consent of the parties. This was a self-imposed limitation which showed an intention on the part of the British Crown not to claim rights to territorial sovereignty over any portion of India.

The year 1765 marked the commencement of the East India Company's territorial sovereignty. Clive succeeded in obtaining from Emperor Shah Alam the grant of the Diwani or fiscal administration of Bengal, Bihar and Orissa. The Nizamat or criminal jurisdiction continued to remain with the Nawab at Murshidabad while the Company was to collect the revenue, maintain the army, and be responsible for the administration of civil justice. Not being familiar with the state of country in the interior,the Company did not interfere with the management of civil institutions till 1722, except by the appointment of a few European officials, with superior authority, to superintend the revenue and judicial administration. At this time Mohamedan criminal law was in force throughout the courts. The principal criminal courts were of the Nawab and his deputy, and of the Faujdars. In the province the zamindars and farmers were responsible for public safety and exercised civil and criminal jurisdiction over their respective districts. Their authority was supreme except in capital cases which were to be reported to the Nizam.  

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The Administration of Justice

The main aims of the administration of justice are two-fold: the search for truth and the attempt to make people abide by the rules of law. In ancient times, according to Vinogradoff, more emphasis was laid on solving problems than on the search for truth. Justice was administered by the King and Manu and Narada have compared the position of the king to that of a surgeon. The Mahabharata says that the king who is also the one who dispenses justice should not deviate from the path of truth and he should be a cultured person with an intellectual bent of mind. The Naradiya Dharmasastra states:

Judicial procedure has been instituted for the protection of human race, as safeguard of law and order to take from kings the responsibility for crime committed in their kingdoms. When humanity was strictly virtuous and veracious, there existed no quarrels, nor selfishness. Virtue having become extinct among them, judicial procedure has been established, and the king, having privilege of inflicting punishments, has been instituted judge of lawsuits.

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Role of Judiciary

 The Judiciary is one of the three basic organs of the State along with the Legislature and the Executive. It has the vital role in the functioning of the state and, more so, in a democracy based on rule of law. The law and the Judiciary have played a vital role in the polity of the country since times immemorial. Its importance has been recognised in the ancient scriptures. The Constitution of India accords a place of pride to the higher   judiciary by conferring the power of judicial review of the legislative and administrative action including review of its own order and decision and entrusting  it with the task of enforcement of the fundamental rights guaranteed under the constitution of India.

In social welfare stat as envisaged by the Constitution of India the state has to discharge manifold obligations for the welfare of the people. This expansion in the role of the state has necessitated legislation in various fields which has resulted in corresponding   increase in the role of the Judiciary. Today the Judiciary is not only required to resolve disputes inter se but also between the citizen and the state. In view of the changing pattern of the disputes which are required to be resolved it became necessary to have special courts and tribunals. Today we have a number of such courts and tribunals functioning in the country dealing with question relating to family disputes, taxation, accident claims, labour disputes, government employees, consumer protection, monopolies and restrictive trade practices, etc.

On account of increasing awareness of the people about their rights there has been considerable increase in litigation resulting in delay in dispensation of justice by the courts. This has led to alternative ave-nues for expeditious adjudication of disputes. One such mode which has been evolved with considerable success in Lok Adalats wherein the parties are able to amicably resolve disputes pre-litigation as well as pending in the courts.

It is found that many times on account of poverty, illiteracy or social and economic disability, a large number of people were not able to approach the courts for legal redressal. With a view to enable such people to obtain relief, the courts have relaxed the normal rules of procedure and have permitted a voluntary organisation or social action group or even an individual social worker to move the court and obtain relief for such persons. This branch of litigation, known as Public Interest Litigation, has been particularly helpful   in  securing  justice to the weak, unorganised and exploited sections of society.

 

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