Conflict-Raja Nandkumar, Kamaludin, Patna Case and Cossijurah.doc

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Conflict: Raja Nandkumar, Kamaluddin, Patna Case, and Cossijurah Case Discuss the facts and principles of law which led to the trial of Nand Kumar: Trial of Nandkumar:

(Note-1)

This trial that took place in 1775 appears to be the result of some sort of collusion between Warren Hastings and Elijah Impey. In this case, the Supreme Court did not act with clean hands. Maharaja Nandkumar, a great Hindu of Bengal, was not on good terms with Warren Hastings. He accused Hastings of corrupt practices before his Council. The charges were written, minute and specific. The governor General maintained that the Council room was not a proper forum for investigation into the charges, that the could not expect the fairness of Judges from the Council as it was then constituted, and that he could not submit to be confronted with a man like Nandkuar without betraying the dignity of his post. The minority, however, resolved to go into the accusations. Hastings, thereupon, dissolved the Council and left the room. Three Councillors voted themselves to a Council, put Clavoring a Councillor, in the chair, ordered Nandkurmar to be cancelled in and heard him about the charges. The Council declared Hastings guilty of the charges and resolved that large sums by way of bribery taken by Hastings must be deposited in the treasury of the Company by taking proper measures for their recovery. Nandkumar, in a way, was triumphant. He however, played a perilous game. He drove to despair a man of resources and determination with all his understanding and acuteness, Nandkumar was unaware of the nature of the institutions under which he was, somehow, very powerful and outvoted Hastings so often. He had no idea of the separation between political and judicial functions. It never came to his mind that there was an independent authority in Bengal other than the Council an authority which could protect one whom the Council wanted to destroy and execute one whom it wished to protect. In its own sphere, the Supreme Court was quite independent of the Government. The Judges, especially Chief Justice, of the Supreme Court, were

BNS hostile to the majority of the Council. With his usual sagacity, Hastings could see this and acted to exploit this authority to his own advantage. Suddenly, Nandkumar was arrested on the charge of committing a felony and thrown in the common prison. The crime imputed to him was that he forged a bond five years before The ostensible prosecutor was a native, Mohan Prasad, but it was the opinion of everybody that the real prosecutor was Hastings. The rage of the majority of the Council was high. They demanded that Nandkumar should be admitted to bail, but Supreme Court returned only haughty and resolute answers. Upon a Prima Facie case made out against him, he was brought and tried before the court and a Jury composed of twelve Englishmen. The trial was protracted to a most unusual length. A verdict of guilty was returned and the Court sentenced him to death under an Act of British Parliament, passed in 1728; the death sentence was duly executed. The Court refused to grant leave to appeal to the King-in-Council and also to grant a respite. Lord Macaulay, James Mill and other historians are critical of the trial, conviction and execution of Nandkumar and point out some sort of conspiracy between Hastings and Chief Justice Impey to put Nandkumar out of the former’s way. It is not without basis in view of the political situation of Bengal at that time. There’re historians like J.F. Stephen who are opposed to these critics. Stephen says that it was not only Impey who tried Nandkumar but all the Judges with the help of the Jury. Whatever the jurisdiction given for the conduct of the Supreme Court in the trial, there are matters which show that the Court did not act fairly. First, it is doubtful if the Supreme Court had jurisdiction over Nandkumar, who was not a resident of Calcutta, and that also in case which was started at the instance of another native, Mohan Prasad. Secondly two of the Judges of the Supreme Court were committing Magistrates also. This must have affected that trial. It was the weakness of the Regulating Act that the Judges were to act as Justice of the peace. This arrangement was defective because the functions of a committing Magistrate and a Judge are essentially different and to some extent opposed to each other. A Judge before whom a person has to stand a trial is not expected to be

BNS as wholly unprejudiced as a Judge who has to try a case. Thirdly, the witnesses of Nandkumar were cross examined not once but many times by all the Judges. Indian witnesses were not accustomed to English law and procedure and the ways of the English Courts. They met with a different treatment. The result was that they got confused under a severe and repeated cross examination by White Judges and the whole defense of the accused collapsed. Fourthly, the offence of forgery with which Nandkuamr was charged and for which he was ultimately convicted was alleged to have been committed in 1777, much before the establishment of the Supreme Court under the Charter of 1774. Thus he was tried by an ex post fact law as the prosecution was based on the charter. This action was repugnant to the spirit of English law and universally acknowledged principles and practice of all rational societies. Fifthly, the Statute which made forgery a capital offence and under which Nandkumar was punished was passed in England in 1728, suitable in conditions of that country only, without any reference to the state of society in India. The law unknown to the natives and was never formally promulgated in Calcutta. The Supreme Court had, however, held that the Statute was applicable even in the circumstances of Calcutta, one Judge dissenting. Sixthly, the Indian law did not punish forgery as capital. It was most unjust to hang a Hindu for this offence. Seventhly, under the Regulating Act and the Charter, the Supreme Court had power to grant leave to appeal to the King in Council. This was refused to Nandkumar by the Court. Was his not a good case for appeal? The court would not listen to any plea. Eighthly the Supreme Court had also power to reprieve and suspend the execution of a capital sentence in a hard case, remit the record with reasons to England and await decision there from. Nandkumar’s was a fit case for the exercise of this power, but the Court would not grant respite. It would not near of mercy or delay. Lord Macaulay has opined that Impey “acted unjustly in refusing to respite Nandkumar. No rational man can doubt that he took this course in order to gratify the Governor–general. Hastings, three four years later, described Impey as the man to whose support he was at one time indebted for the safety of his fortune, honour and reputation. These strong words can refer

BNS only to the case of Nandkumar and they must mean that Impey hanged Nandkumar in order to support Hastings. It is, therefore, our deliberate opinion that Impey, sitting as Judge, put a man unjustly to death in order to serve a political purpose. “Stephen is critical of Macaulay and tries his best to justify the action of Supreme Court, but it appears from a careful study of his work that he is not wholly true in his analysis and unreasonably supports the Court and its Chief Justice Impey. “No writer cites any second instance of forgery being punished with death. In Calcutta in 1802, the Chief Justice expressly lamented that the crime was not yet capital.” It is worth nothing that execution of Nandkumar under the decree of the Supreme Court excited the feelings of everybody and this institution went down in the estimation of the natives Case of Nandkumar, 1775, British India:

(Note-2)

Nandkumar was an Indian

tax official, most familiar for his connection with Warren Hastings, the first Governor-General of Bengal. He was nominated as the collector of Burdwan in 1764 in place of Hastings, which resulted in a historical-standing enmity. Thus was initiated the case of Nandkumar. Within the period of 11th and 13th March 1775, Nandkumar (1705-1775) sent several letters and other documents implicating Hastings in fraudulent practices to the GovernorGeneral`s Council in Calcutta. A majority of the Councillors - Sir Philip Francis (1740-1818), George Monson (1730-1776), and John Claverlng (1722-.1777), declared their intention of investigating the charges of Hastings` presumed taking of a bribe. Their resolution and evidence was forwarded to the Company`s attorney in London. On 6th May 1775, John Hyde (c.1737-1796) and Stephen Le Matstre (d. 1777), Justices of the Supreme Court of Calcutta, were acting as Justices of the Peace. They committed Nandkumar to trial on the charge of forgery as provided for within the English law of forgery. Within the period of 8th to16th June 1775, Nandkumar came to trial for forgery in the facilities of the old Mayor`s Court in Calcutta. On receipt of the case, the Jury required only an hour to determine a guilty verdict. Nandkumar`s case had already taken a hideous turn in the hands of the implicating masters, when the lawmakers had attempted to debase Nandkumar and his strong statement against Hastings. However, the case`s final findings were

BNS completely unprecedented for native population. On 5th August 1775, Nandkumar was hanged. The case of Nandakumar however had an immense impact on the British law system and changes in the arena of administration, law and over all governance were witnessed. In October 1775, as an immediate effect, the Governor-General-in-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 GovernorGeneral-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

BNS British administration were consciously aware of their terrible wrong-doing of hanging Nandkumar and dismissing his case as forgery. Infamous trial of Raja Nand Kumar:

(Note-3)

Raja Nand Kumar, a Hindu Brahmin was a big Zamindar and a very influential person of Bengal. He was loyal to the English company ever since the days of Clive and was popularly known as “black colonel” by the company. Three out of four members of the council were opponents of Hastings, the GovernorGeneral and thus the council consisted of two distinct rival groups, the majority group being opposed to Hastings. The majority group comprising Francis, Clavering and Monson instigated Nand Kumar to bring certain charges of bribery and corruption against warren Hastings before the council whereupon Nand Kumar in march, 1775 gave a latter to Francis, one of the members of the council complaining that in 1772, Hastings accepted from him bribery of more than one Lakh for appointing his son Gurudas, as Diwan. The letter also contained an allegation against Hastings that he accepted rupees two and a half lakh from Munni begum as bribe for appointing her as the guardian of the minor Nawab Mubarak-ud-Daulah. Francis placed his letter before the council in his meeting and other supporter, monsoon moved a motion that Nand Kumar should be summoned to appear before the Council. Warren Hastings who was presiding the meeting in the capacity of Governor-General, opposed Monson’s motion on the ground that he shall not sit in the meeting to hear accusation s against himself nor shall he acknowledge the members of his council to be his judges. Mr. Barwell ,the alone supporter member of Hastings ,put forth a suggestion that Nand Kumar should file his complaint in the supreme court because it was the court and not the council ,which was competent to hear the case. But Monson’s motion was supported by the majority hence Hastings dissolved the meeting. Thereupon majority of the members objected to this action of Hastings and elected Clavering to preside over the meeting in place of Hastings .Nand Kumar was called before the council to prove his charges against Hastings. The majority members of the council examined Nand Kumar briefly and declared that the charges leveled against Hastings were proved and directed Hastings to deposit an amount of Rs.3, 54,105 in treasury of the company,

BNS which he had accepted as a bribe from Nand Kumar and Munni Begum. Hastings genuinely believed that the council had no authority to inquire into Nand Kumar’s charges against him. This event made Hastings a bitter enemy of Nand Kumar and he looked for an opportunity to show him down. Facts of the case:Soon after, Nand Kumar was along with Fawkes and Radha Charan were charged and arrested for conspiracy at the instance of Hastings and barwell. In order to bring further disgrace to Raja Nand Kumar, Hastings manipulated another case of forgery against him at the instance of one Mohan Prasad in the conspiracy case. The Supreme Court in its decision of July 1775 fined Fawkes but reserved its judgment against Nand Kumar on the grounds of pending fraud case. The charge against Nand Kumar in the forgery case was that he had forged a bond in 1770. The council protested against Nand Kumar’s charge in the Supreme Court but the Supreme Court proceeded with the case unheeded. Finally, Nand Kumar was tried by the jury of twelve Englishmen who returned a verdict of ‘guilty’ and consequently, the supreme court sentenced him to death under an act of the British parliament called the Forgery Act which was passed as early as 1728. Serious efforts were made to save the life of Nand Kumar and an application for granting leave to appeal to the king-in-council was moved in the Supreme Court but the same was rejected. Another petition for recommending the case for mercy to the British council was also turned down by the Supreme Court. The sentence passed by the Supreme Court was duly executed by hanging Nand Kumar to death on August 5, 1775.In this way, Hastings succeeded in getting rid of Nand Kumar.

Critical Appraisal: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

BNS 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 Kumar’s trial was certainly a case of miscarriage of justice.

Case of Kamal-ud-din: The case of Kamal-ud-din (1775) the man having been committed to prison in execution by the Calcutta Revenue Council of arrears of revenue due from him as farmer of the revenue which he disputed, obtained Habeas Corpus [Habeas corpus (Latin: "you may have the body") is a writ, or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence] from the Supreme Court to set him at liberty on bail. This was taken by the Supreme council as usurpation (take (a position of power) illegally or by force) on the rights of the Company as Diwan. It held the opinion that the Court had not authority to take cognizance of any matter relating to the revenue, and that the Court’s proceedings in the release of Kamal-ud-din exceeded its jurisdiction and were against law. This opinion of the council made it and not the Court to be the true interpreter of the Act and obviously was an outrageous assertion of military power against law.

Patna Case: The facts of the case are as follows: Shabaz Beg Khan, a native of Kabul, came to India to seek his fortune as a solider and became very rich. He settled at Patna after his marriage with Naderah. He died in December, 1776, leaving behind him considerable property in possession of the widow. Sometime before his death he had called from Kabul a nephew, Bahadur Beg, the son of his brother. It was alleged, though not proved, that Shahbaz Beg Khan had expressed his desire to make Bahadur Beg his heir (A person legally entitled to the property or rank of another on that person's death). Within three weeks of his death, Bahadur Beg filed a petition before the Patna Provincial council. It was stated in the petition that he was the adopted son of the deceased and that the widow of

BNS the deceased had embezzled some of the goods. It was, therefore, prayed that guards might be set to protect the property and that the Kazi and Muftis, the Mohammedan Law Officers of the Council, might be instructed to ascertain the petitioner’s right and give information to the Council that the petitioner might obtain his right. No definite or district claim was made. The council thereupon issued an order to the Kazi and Muftis to prepare an inventory of the property, to secure it till the time of decision and its division, and to make a written report to the Council according to be ascertained facts and legal justice. It may, however, be pointed out here that the ex parte (With respect to or in the interests of one side only or of an interested outside party) proceedings without notice to the widow were “proof of the looseness with which business of this kind was then conducted”. The Kazi and Muftis went to the house of the deceased and after a good deal of difficulty entered the house, locked it up and sealed some of the doors. After a few days they prepared an inventory of the property. In this occasion Naderah Begum was ill treated and taken as an object of rapine and plunder. She therefore filed from the house and retired into a Durgah, a holy place. There also she remained under constant restraint for about three months. In the meantime, the Kazi and muftis held an inquiry and then submitted a report to the Patna council. The report stated for the first time the nature of the dispute. It was said that Bahadur Beg claimed the property as the adopted son of Shabaz Beg, that the widow claimed it under a will and a deed of gift made by the deceased (A person who has died), and that the will and the deed of gift were both forged. The report recommended that the property should be divided into four parts, of which three should go to Bhadur Beg, because his father was the legal heir of the deceased, and the fourth part should be given to the widow. The Patna council accepted the report and ordered the Kazi and Muftis to divide the inheritance accordingly. Some soft of division was made but he widow, Naderah Begum, refused to accept the share allotted to her. Ultimately she brought an action in the Supreme Court against Bahadur Beg, the Kazi and Muftis for assault, battery and imprisonment during a period of

BNS six months, and also for breaking and entering her house and carrying off her property to the value of rupees six lacs. The Supreme Court issued a writ of Capias which meant a warrant of the arrest of defendants liable to be released on giving bail. All of them were arrested, brought to Calcutta and placed in the jail on not furnishing bail. The first question which arose was to the jurisdiction of the Supreme Court over Bahadur Beg. Evidence showed that he was a farmer of the revenue of certain villages. The Court, therefore, held that he was a subject of its jurisdiction as being directly or indirectly in the service of the East India Company. The defense of Bahadur Beg was that he was only a suitor and that all he did was to take what the ministers and officers of a Court of Justice gave him. The substance of the jurisdiction of the Kazi and Muftis was that the Provincial Councils were Courts of Justice before the Regulating Act and were attended by Kazi and Muftis to whom suits between Mohammedans were referred. Thereupon, the Kazi and Muftis heard the parties and the evidence on both sides and made a report to the Court which on its basis passed a decree subject to an appeal to Calcutta. This arrangement was sanctioned by the governor-General in Council who had requisite power for that purpose under the Act. The present case was a cause between Mohammedans and it was referred to them as Kazi and Muftis. The acts complained of were done by them as ministers and officers of the Court of Justice. The whole case was tried before the Supreme Court for ten days. The Court found that the report submitted by the Kazi and Muftis was testimony to the fact that these law officers did not even possess the most elementary notions of what was required for the investigation of the questions of fact. They did not hold any proceedings in the nature of a trial. Several most important facts were ascertained by them in casual conversation, not on oath, and ever by writing notes to which verbal answers were sent back by those persons who were regarded a witnesses. The base statement of Bahadur Beg was accepted as proof of his claim because it was clear and explicit though no evidence was taken about it. The Court observed that the Patna Council had no authority to make over to the native law officers the actual decision of the case itself. This was obviously and radically illegal and amounted to gross desertion of its

BNS duty.

Later on even Warren Hastings himself spoke critically of great

irregularity in the proceedings of the law officers whose sole business was to have declared the laws, not to become the Judges of facts; it was the Diwani Court which was to decide the questions of fact. To examine witnesses was entirely foreign to the duty of the Kazi and Muftis; they should have been examined by the Court itself. The Court then examined the report of the law officers and the evidence given at the trial before it as the forgery of the deeds under which the widow claimed the property. It concluded that they were genuine and the report submitted by the Kazi and Muftis was unjust and absurd, some most important statements made in it being willfully false. The Court assessed the damages to the extent of three lacs of rupees on the ground that the widow was deprived of property in her possession to which it was not shown that she was not entitled, by acts corrupt and oppressive in essence and done in a needlessly brutal and offensive way. The defendants were unable to pay these huge damages and were, therefore, lodged in Jail. Discuss the facts which led to the Cossijurah Case:

Cossijurah Case: The Patna case whose proceedings took place in 177779. The latter case brought the quarrel between the Supreme Council and the Supreme Court to State of crisis by the beginning of 1780. The facts of the case are as follows. One Cossinaut Baboo had lent a large sum of money to the Zamindar or Raja of Cossijurah. He had tried in vain to obtain this money through Board of Revenue at Calcutta. He therefore, sued the Raja in the Supreme Court and filed an affidavit in August 1779 which stated that the Raja was employed in the collection of revenue and, therefore, amenable to the Court’s jurisdiction. The Collector of Midnapore, in whose district the Raja resided, informed the Governor-General in Council about this development and said that the Raja was hiding himself in order to avoid service of the writ to a great loss of the revenue. The council, after having obtained the opinion of the Advocate General, issued notification to all land holders informing them that they were under no obligation to pay any attention to the process of the Court unless they were servants of the Company or had subjected

BNS themselves by their own consent to the jurisdiction of the Court. A special direction to the same effect was issued to the Raja of Cossijurah, who thereupon took no notice of the further process of the Court. His people drove away the Sheriff and his officers when they tried to arrest him under writ of capias (defined as orders to "take" a person or assets). The Supreme Court, thereupon, issued another writ to sequestrate (Chiefly British to seize) the property of the Raja to compel his appearance. The Sheriff with a small armed force of men marched to Cossijurah in order to execute the writ, seized the person of the Raja violently outraged the sanctity of the family idol and broke into the zenana. In the meanwhile, the English Commander of troops at Midnapore marched with a force of sepoys against the Sheriff’s party and arrested them in execution of the orders of the governor-General in Council. The process to arrest the Commander for contempt was also prevented by military force. ***********