HISTORY

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CASE OF RAJA NAND KUMAR, 1775

BRITISH INDIA.
INTRODUCTION
The case of Nandkumar stands in a class by itself. It brings out the
conflict between Warren Hastings and the majority in the council
and between the court and the majority. Nandkumar was the
protg of the majority in the council and his trial before the
Supreme Court thus became in a way a trial of strength between
the court and the majority. This case illustrates forcefully the
anomalous character of the first impact of the English law on the
Indians and depicts what kind of difficulties arise when a foreign
system of law is transplanted suddenly in a society and is
enforced with all its rigours.The Supreme Court of Calcutta though
established, by the charter of 1774 by King George III, with the
avowed object of protecting the Indians against the oppressive
activities of the servants of the Company, was not, however, an
unmixed blessing to those Indians who came within its purview.
The Courts constitution, jurisdiction, powers, law and language
were all foreign and unknown to the Indians and were completely
out of harmony with their customs and traditions. All these
aspects of the matter are dramatically brought out by the
Nandkumar Case. With the insistence of judges on the
independence of judiciary, inspire of interference of the Council,
began a new era in the administration of justice in India. The trial
gained great historical importance as it formed an integral part of
the charge on which Warren Hastings and Impey were impeached
by the House of Commons after their return to England.

THE CASE

Nandkumar was arrested with Fawkes and Radhacharan

for conspiracy at the instance of the governor general and
Barwell. The Supreme Court in this case delivered its judgment in
1775, Fawke was fined but judgment was reserved against
Nandkumar on grounds of the forgery case. The charge of forgery
against Nandkumar, which came before the Supreme Court in May
1775 was with respect to a bond or a deed claimed as an
acknowledgement of debt from Bulaki Das the Banker, which it
said was executed by him in 1765. Mohan Prasad brought a case
of forgery before the Justices of Peace for the town of Calcutta.
The magistrate, in the capacity of the Justices of Peace, being
satisfied with the evidence of the prosecution witness, ordered
the Sheriff at Calcutta to keep Nandkumar in safe custody until he
should be discharged in the due course of law. On 7thMay Mohan
Prasad gave a bond to prosecute Nand Kumar in the Supreme
Court. On the basis of it the trial began before the Chief Justice,
Elijah Impey and three other puisne judges, Robert Chambers,
John Hyde and Le Maistre along with a twelve member jury of
which two were Eurasians and the rest were Europeans. Durham
was engaged as the counsel for Mohan Prasad and Alexander
Elliot as the interpreter of the court. Thomas Farrer was appointed
as the defence counsel for Raja Nandkumar. The trial continued
for a period of eight days without any adjournment. On 16thJune
1775, Chief Justice Impey summed up the whole case. The judges
gave the unanimous verdict of guilty and the jury also declared
their verdict of guilty. Rejecting all defense pleas the Chief
Justice passed the sentence of death on Nand Kumar under an Act
of British Parliament, which was passed in 1729.The defense
counsel decided to take an appeal to the King in Council
and petitioned the court to stay the execution of the sentence so
long as the councils decision was not known. The court rejected
the petition. Efforts were also made to seek the assistance of the
members of the council but all efforts proved in vain. Raja
Nandkumar was thus hanged on 5thAugust 1775 at the Cooly
Bazar near Fort William.

IMPORTANT QUESTIONS TO BE
DEALT WITH.
Whether NandKumar was under the jurisdiction of the
court?
Objection regarding the jurisdiction of the Supreme Court over
Raja Nandkumar was based on the ground that before the advent
of the Supreme Court, the Indians in Bengal were tried by their
own men in their own criminal local courts, the faujdari adalats. In
this case the offence was committed in 1770,
i.e.
Before the formation of the Supreme Court, thus Nandkumar
could be tried only by Faujdari Adalat and not by the Supreme
Court. According to Keith, the Supreme Court had committed an
odious crime by convicting Raja Nandkumar. Thus the role of
Supreme Court did not exhibit a very healthy tendency conducive
to the protection of interests of Indians against the oppression of
servants of the Company. It showed an anomalous character of
the Supreme Court in so far as it exercised jurisdiction over
Indians.
Whether the English Act of 1728, which made forgery a
capital offence and under which Raja Nandkumar was
tried, was extended to India?
Nand Kumars case throws interesting light on the early notions
entertained by the Supreme Court on the question of applicability
of the English law to Calcutta. The court held that the statute of
1728 was applicable to the presidency towns. Now whether an
English law is applicable or not to a place is determined by two
factors:

Whether or not it is suitable to the conditions prevailing

there?
The theory of English law is that it is not the whole of English law,
but only such portions thereof as suit the conditions of the colony,
which are introduced there, even the charter laid that the
Supreme Court would administer criminal justice in such and like
manner as the court of over and termini and gaol delivery did in
England. The question therefore was that whether the statute of
1728 making forgery a capital offence in England suited the
conditions prevailing in Calcutta at that time. The court
specifically went into the question, took evidence, heard
arguments and concluded finally that the town of Calcutta
enjoyed a great commercial importance and the conditions which
made the Act necessary in England existed in Calcutta also and so
the law in question suited Calcutta.2.

The date when the English law was introduced there?

4At that time nobody entertained any doubt that the English law
had been introduced into Calcutta not only by the charter of 1726
but also by the charter of 1753. Impey did assert at that time that
all the criminal law in force in England 1753 became the law in
Calcutta. On this supposition the court held that the Act of
1728was applicable to Calcutta and so Nandkumar was tried.
Later, however, the judicial view underwent a change and it came
to be held that English was introduced in the presidency towns in
1726 and that the subsequent charters could not be regarded as
substantive re-introduction of English law up to their date. On this
view the Act of 1728 could not be made applicable to Calcutta
and so Nandkumar could not be punished there under. Looking in
retrospect therefore Nandkumars trial thus becomes unlawful.
Moreover quite a good amount of this law was repugnant to the
customs and morals of the Indian people.

DISTRICTIVE FEATURES

Every judge of the Supreme Court cross-examined the defense

witnesses dueto which the whole defense of Raja Nandkumar
collapsed. Judges took the unusual course themselves in crossexamining the witnesses and that so me what severely. Indian
witnesses were not conversant with the English law and
procedure and this shattered the whole defense of Nandkumar.
Criticizing the attitude of the judges
H.E. Busteed wrote, The desire of the judges was to break down
Nandkumars witnesses, in particular the Chief Justices manner
was bad throughout and that the summing up wasunfavourable.
After the trial when Nand Kumar was held guilty by the court he
filed an application before the Supreme Court for
Granting leave to appeal to the King-in-Council
but the court rejected this application without giving due
consideration.
Under its charter the court had the power to reprieve and suspend
the execution of a capital sentence and recommend the case for
mercy to His Majesty. The court did not exercise this powering
favor of Nandkumar though there could not perhaps be a strong
case deserving exercise of the 5courts power. Denial of
permission to appeal to the King in Council to Nandkumar was in a
nutshell, a blatant disregard of justice, Supreme Court ought to
have exercised this jurisdiction in order to prove its impartiality in
the eye of law.
Nandkumar committed the
Offence of forgery nearly five years ago
In 1770
i.e. Much before the establishment of the Supreme Court. The Act
of 1728under which Nandkumar was tried had never been
formally promulgated in Calcutta and the people could not be
expected to know anything about it. He was thus tried by an

ex post facto
Law in the prosecution was based on the charter.
Neither under Hindu law nor under Muslim law was
forgery considered to be a capital crime.
To sentence an Indian to death under these circumstances by
applying literally an obscure English law was nothing short of
miscarriage of justice. It appears that the attitude of the court
was conditioned by the hostility which the majority of the council
had shown to the court from thievery beginning of Nandkumars
trial.
Keith has rightly said, The sentence in any event, as a matter of
plain duty, have been respite by the court, but Hastings private
secretary intervened to prevent such action, and the councilors
did nothing.
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.
Thus,
Warren Hastings prosecuted Nandkumar through a native,
Mohan Prasad.
All these facts show the mala fades the Judge of the Supreme
Court and the fate which Nandkumar met was due to a predetermined plan.
Edmund Burkevery correctly narrated the popular view in his
speech on Foxs 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 Judges you sent to
protect that people hanged for a pretended crime, upon an ex
post facto Act of the British Parliament in the midst of his
evidence against Mr. Hastings.

CONFLICTS

Chief Justice Impey in this case acted unjustly in refusing to

respite to Nand Kumar. No rational man can doubt that he took
this course in order to gratify the Governor-General. The trial of
Nand Kumar disclosed that the institution of Supreme Court
hardly commanded any respect from the natives as it wholly
unsuited to their social conditions and customs. The trial has been
characterized as judicial murder of Raja Nand Kumar which
rudely shocked the conscience of mankind. Raja Nand Kumars
trail was certainly a case of miscarriage of justice.
In October 1775, as an immediate effect, the Governor-Generalin-Council restored Mohamad Reza Khan to the position of Naib
Subah in charge of criminal justice in Bengal and to administer
the Sadar Nizamat Adalat which was moved from Calcutta
to Murshidabad.
In April 1777, the British East India Company created the post of
Advocate General in the Supreme Court and appointed Sir John
Day to the position. His responsibilities included conducting the
Company's suits before the court.
As an aftermath to the Nandkumar case, on 22 July 1777,
Hastings was in a hurry to amend his role as a governor
commanding respect. In consequence, he separated the roles of
civil justice from revenue collection as carried out then. In lieu of
instructions from the Company, Hastings established a Diwani
Court for civil jurisdiction at Dacca. Only in 1780 were the other
provincial courts similarly modified.
On 11th April 1780, the Governor-General and Council issued
Regulations for the Administration of justice. It had the intent of
embodying the rules of 1772, of reducing friction between
revenue and judicial authorities and in promoting the impression
of Justice done.

On 17th April 1780, a regulation provided for the Indians of

Bengal, Bihar and Orissa to continue to use their Mohammedan or
Hindu laws in the 'Mofussil' (places and areas that did not fall
under city categories, remote districts). This practice was
generally repeated in future regulations and in Bombay and
Madras. As possible, the courts attempted to apply Armenian law
in Calcutta and Parsi law in Bombay. Hastings, together with his
council of generals also tried to make hasty efforts by granting
supreme native rights in city jurisdictions.
On 18th October 1780, the Governor-General-in-Council revived
the Sadar Diwani Adalat to hear appeals regarding revenue cases
from lower courts. In a highly controversial decision, Hastings
placed Sir Elijah Impey (1732-1809), Chief Justice of the Supreme
Court of Calcutta, also at the head of this court thus creating
every appearance of a conflict of interest. As a consequence, the
Court of Directors ended the appointment in 1782 and the House
of Commons recalled Impey in May 1782 to face impeachment
proceedings.
These were substantial evidence that British administration were
consciously aware of their terrible wrong-doing of hanging
Nandkumar and dismissing his case as forgery.

PATNA CASE,(1777-1779).
INTRODUCTION
The Patna Cause was . an action brought in the Supreme Court by
Naderah Begum against Behader Beg, Cazi Sahdee, Mufti Barracktoolah, and Mufti Gholam Muckdoom. The plaint was for assault,
battery, and imprisonment said to have extended over the period
between the 31st of January and 1st August 1777, also for
breaking and entering the plantiff's house and carrying off her
property to the value of R.600,000. Behader Beg pleaded to the
jurisdiction, but on this plea judgment was given against him. Al l
the defendants pleaded not guilty, and they also gave notice of
facts of which they proposed to give evidence in justification of
what they had done. Behader Beg's proposed justification was, in
substance, that in the matters complained of he acted only as a
suitor, and the other three defendants said that they acted only
as ministers and officers of a court of justice.

THE CASE
The facts out of which the action arose were these: Shabaz Beg
Khan was a native of Cabul who came into India to seek his
fortune as a soldier. He became very rich, settled at Patna,
married late in life Naderah Begum, the plaintiff, and had no other
wife. He died on the 10th December, 1776, " leaving very great "
property behind him, and his widow in possession of it. " Some

time before his death he brought up from Cabul a nephew,

Behader Beg, the son of his brother. And it was stated, though not
proved, that he had expressed his intention to make this man his
heir. There was also living in his house another nephew, Cojah
Zekereah, the son of one of his sisters. On the death of Shabaz
Beg Khan, his widow, Naderah Begum, remained in possession of
his property, but Behader Beg, within three weeks of his death,
presented a petition to the Patna Council endorsed by their officer
" 2nd January, 1777." The petition said that the petitioner was the
adopted son of the deceased, that the widow had embezzled
some of the deceased's goods, and prayed that guards might be
set to protect the property, and that the Council would order the
Cazi to ascertain the petitioner's right, " and " give information to
the Presence " (i.e. to the Council) " that your petitioner may
obtain his right." It made no definite, distinct claim. The Council 2
thereupon issued an order to the Cazi and Muftis to take an
inventory of the property, secure it until the time of the decision
and division, and to transmit to the Council a written report "
according to ascertained facts and legal "justice.
It is a remarkable proof of the looseness with which business of
this kind was then conducted, that this proceeding seems to have
been entirely ex parte and without notice to the widow or any one
on her behalf. The Cazi and the Muftis went to the house, and
after a great deal of difficulty and some dispute as to the
appointment of Cojah Zekereah as attorney for the widow (an
appointment alleged by the defendants and denied by the plaintiff
to have been duly made), got into the house and locked it up and
sealed some of the doors. A few days after they returned and
made an inventory of the property. It was said that on this
occasion they behaved very rotfghly, compelling the plaintiff by
threats of force to leave one room after another, until at last she
took refuge in a filthy outhouse open to a common bazaar. After
undergoing, as was said, some other indignities, she retired into
the durgah of Shah Azum, which was inhabited by Fakeers, who

gave her hospitality. A guard was set upon her by the Council at
Patna 2 " to intimidate her to give up the slave-women, " papers,
and seal of the deceased/' She remained at this place under
restraint for about three months. At first the guards would not
even allow the Fakeers to give her food, and they did so secretly;
but the strictness of the guard was afterwards somewhat relaxed.
In the meanwhile (the exact date does not appear) the Cazi and
Muftis held an inquiry, and sent in a1 report which must have
been delivered before January 20th, 1.777, because on that day
an 2 order upon it was signed by Mr. Droz, one of the Patna
Council. Upon this the Court at Patna ordered the Cazi and Muftis
to divide the inheritance according to the report, but in favour of
the widow they ordered that Behader Beg should pay her a
quarter of the income of the Altamgha lands, which had been
reported by the Cazi and Muftis as excluded from the inheritance.
Some sort of division was accordingly made, and it seems that
Cojah Zekereah was told that he could take the part allotted to
Naderah Begum. He refused to do so. There was much
controversy, into which it is needless to enter, as to the
circumstances of this division, and as to Cojah Zekereah's
proceedings in relation to it. The only point worth noticing as to
this part of the case is that very early in the proceedings Cojah
Zekereah was arrested for the forgery of one or both of the
documents produced by him. The result of the whole matter was
that Naderah Begum was expelled from the house in which she
was living, treated with considerable indignity, deprived of the
possession of the whole of the property which had belonged to
her husband, and declared to be entitled to one-fourth of it only,
the deeds on which she claimed the whole being alleged to be
forged. These were the wrongs for which she brought her action.

JUGEMENT

In the provincial Court the case placed before Muhammadan law

officers.
The officers after full hearing reported to the council that gift
deeds were forged documents and no gift was made in favor of
Nadirah Begum by deceased.
They also reported that the nephew, Bahadur Beg court not be
adopted under Muslim law. Therefore, recommended that
property be divided into four parts out of which three parts were
to be given toBahadur Beg on the basis of consanguinity
(relationship by blood) and also heir of the diseased and the
fourth part be given to the widow.
. Nadirah Begum was dissatisfied with the decision of the
provincial Council, and she filed an appeal before the SadarDiwani-Adalat at Calcutta
Due to their busy routine work they could not considered the
matter for a long time.
With indifferent approach of the court, she filed a suit in the
Supreme Court against Bahedur Beg, Kazi and mufti for assault,
battery, unlawful imprisonment and claimed 6lakhs as damage.
The Supreme Court issued ordered to arrest of BahadurBeg, Kazi
and mufti.
The supreme court decided that the documents were genuine
and that Kazi and mufti did not act in good faith. The court
awarded the damages of Rs.3,00,000 in favor of Nadirah Begum
and the law officers were imprisoned
The whole case was bitterly criticized on the grounds that which
law Bahadur Beg and law officers were subjected to the
jurisdiction of the Supreme Court
The Supreme court justified his jurisdiction over Bahadur Beg as
a former and paying land revenue to the company.
Both the parties were Muslims to which the Mohammedan Law
of inheritance was to apply; it was purely a matter of personal law
to Mohammeans.
There were no written agreement between the parties to submit
the case to the Supreme Court for a decision.

CONFLICTS
In Impey's days there was no doubt a great amount of corruption
and extortion. Whether he was right in imputing it to the Cazi and
Muftis in the Patna Cause is a matter on which I have no opinion.
He may have been wrong, but he may also have been right, and if
he was I see no hardship in what befell them. If they really did
plunder the woman of her property and treat her with gross
indignity by an abuse of powers which the Council had illegally
abandoned to them, I do not see why they should not pay for it.
The administration of justice by the English in India can never be
wholly satisfactory. The difficulties inherent in the enterprise can
never he entirely overcome : but a great deal may be and has
been done to overcome them, and the existing system, while it
has great defects, has nevertheless conspicuous merits. A whole
system of law has been enacted which errs perhaps on the side of
over-minuteness, but which is at least in the most important parts
simplified and made definite to the utmost practicable extent. A
network of Courts arranged in different grades and connected
together by a system of superintendence, revision and appeal,
which may in some particulars be over-elaborate, but which is the
best security against oppression or corruption, has been spread
all over the country. The great numerical majority of these Courts
are presided over by native judges specially educated for their
profession, and the result of all this anxious care has been the
establishment of a system absolutely different from anything
which was dreamt of in India or in England either 100 years ago. It
was in efforts like these, and in the vigilance, care, and thought
necessary for making them, that the true remedy lay for the evils
which the Supreme Court set in a striking light and attempted to
remedy by giving heavy equally obviously Impey was the man. He
had made enemies on all hands. Francis was accusing him of the
murder of Nuncomar, the Europeans at Calcutta were accusing

him of being a thorn in their sides in various ways to be

mentioned immediately. The thorough-going advocates of the
East India Company regarded the Supreme Court with aversion as
at once the bulwark and the most marked instance of the
usurpation by the King of England on what they viewed as the
rights of the Company. The union of these various topics of
prejudice produced what may be described as the orthodox faith
on this subject. It has ever since been the accepted opinion that
in this matter, at least, the Supreme Court and Impey, its chief
justice, grossly misconduct themselves

KAMALUDDIN CASE (1775)

CASE
Kamaluddin a farmer of Hugli was courts control by the Calcutta
Revenue Council on the ground of arrears of revenue.The
Revenue council released to orders to arrest Kamaluddin. He
approached the Supreme Court for a writ of habeas corpus and
court given bail till the enquiry as his obligation to pay was
completed. Same time court directed the council to accept bail for
Kamaluddins appearance in the Diwani court and not to take him
into custody until his under renter had been called upon to pay
the rent.
The council thought that according to the 1773 Act, the court
had no right to interfere in revenue collection. Three members of
the council suggested that court order should not be recognized
and obeyed. But some time later Kamalluddin was arrested again
and he again obtained writ habeas corpus and he was finally
discharged by the court.

CONFLICT
Chief justice Imphy writes in a letter to the Court of Director
Justified courts action on two grounds. In a case of this nature, it
had been the usual practice for the Revenue Council to take bail
and so the court made the direction for taking bail. It has been
the established practice to demand rent from the under tenant
before demanding much less imprisoning the former and the
court order was consistent with the practice.