DEVELOPMENT OF CRIMINAL LAW IN INDIA UNDER THE BRITISH RULE

 

Before the advent of the British, the penal law prevailing in India for the most part was the Mohammedan Law. With necessary modifications, it continued to govern the people of India for a considerable period of the East India Company's administration, as the latter did not interfere with the thither- to-prevailing penal law of the country. Provisions of the Mohammedan law, however, were superseded only in cases where the regulations and the Mohammedan law prescribed distinct penalties for the same offence.

The first major attempt to reform the criminal justice was made after passing of the Regulating Act 1773, under which new courts were set up. In each district, a criminal court, Foujdaree Adalat, was set up. It composed of Mohammedan officers, a kazi, a mufti and two maulvis, to try criminal cases in presence of a Collector, a European supervisor, whose duty was to see that the trial was fairly conducted according to the law by which it professed to be guided. A superior court of revision, Nizamat Sadar Adalat, was set up at Moorshedabad. It was composed of a daroga, the chief kazi, the chief mufti and three maulvis. It formed a court of revision as to the proceedings of the Foujdaree Adalat, and in capital cases signified their approval or disapproval of convictions. In 1793, another reform, in pursuance of the Lord Cornwallis's Judicial Regulations, was made. In each district or zilla, a court, composed of a European judge assisted by a Hindu law expert and a Mohammedan law expert, was set up. Four appellate courts, comprising three judges and three native experts of Hindu and Mohammedan law, namely a kazi, a mufti and a pandit, were set up at Calcutta, Dacca, Patna and Moorshedabad. All these courts were subject to the Suddar Nizamat Adalat or Supreme Criminal Court at Calcutta, which consisted of the Governor-General and his council, with principal native law officers. Thus, this was the first criminal court presided over by a English judge established under the authority of the Company for the administration of criminal justice to the natives of India. However, subsequently, the constitution of the Suddar Nizamat Adalat was completely changed. Instead of consisting of the Governor-General-in-Council, it was composed of civilian judges, and the district or zilla judges were empowered to act as criminal courts. During the same time, magistrates, who were also collectors, were authorised to hear and determine petty offences such as assaults, and to punish them with imprisonment up to fifteen days or fifteen strokes of rattan, subject or not to an appeal to the sessions judge.

Thus, the final form of the criminal courts of the East India Company was Suddar Nizamat Adalat, the sessions judges, and the magistrates.

These courts had jurisdiction over the native Indians only. Alongside this, existed a system designed for the double purpose of administering English law to the Europeans in India and of serving as a counterpoise in their interest to the great powers vested in the Governor-General and his council. These institutions were the Supreme Courts and Justices of the Peace.

The Regulating Act of 1773 authorised the Crown to establish a Supreme Court at Calcutta, consisting of a Chief Justice and three puisne judges. The court was to have power to hear and determine all complaints against any British subjects residing in Bengal, Bihar and Orissa for any 'crimes, misdemeanors, or oppressions committed' by them. The Charter granted under this Act gave to the Supreme Court within its limits all the authority of the Court of King's Bench in England. It also provided in reference to criminal justice that it should be administered 'in such or the like manner, and form, or as nearly as the condition and circumstances of the place and the persons will admit of as our courts of oyer and terminer and gaol delivery do or may in that part of Great Britain called England'. Supreme Courts similar in all respects to the Supreme Court of Calcutta were established in Madras in 1800 and in Bombay in 1823.

However, this reform in the administration of criminal justice led to a problem. The Britishers on these courts began gradually to refer to, and rely upon, the English law of crimes, while the criminal courts in the Presidency towns were obliged to follow their own system of law. Such a practice, obviously, resulted into a non-uniform law of crimes.

The Bombay Province was the first province in India to enact in 1827 a brief penal code, the Bombay Regulation of 1827 (the Bombay Code or the Elphinstone Code), for the mofussil. The Bombay Regulation, incorporating almost all the penal law of the Bombay Presidency, issued by Mountstuart Elphinstone, the then Governor of Bombay, superseded the Mohammedan penal law. The Bombay Code, which was extremely simple, short and written more in the style of treatise than in that of a law, remained in force until it was su- perseded by the Indian Penal Code 1860 (IPC).

In 1849, when Punjab was annexed to the British Empire by Lord Dalhousie on 29 March, a short Code was drawn up by the then Governor-General for the Punjab Province as, the Mohammedan penal law, which was in force in Bengal, was not recognised in the Punjab province. The penal law of the Madras, Bengal, Bihar and Orissa provinces and of other territories acquired by the British, then known as North-West Provinces, was constituted by regulations.

Such was the position of criminal law in the most important parts of India when the government was taken over by the Crown from the East India Company in 1858. However, one needs to go back to the Charter Act of 1833 to trace and appreciate the development of penal law by the new government.

(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)