Judicial Murder Case - Raja Nand Kr

RAJA NAND KUMAR CASE 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 protégé 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 Court’s 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, inspite 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.

2

THE CASE

A few months later 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 7th May Mohan Prasad gave a bond to prosecute Nand Kumar in the Supreme Court. On the basis of it the trial bagan before the Chief Justice, Elijah Impey and three other puisne judges, Robert Chambers, John Hyde and Le Maistre alongwith 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 16th June 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 defence pleas the Chief Justice passed the sentence of death on Nand Kumar under an Act of British Parliament, which was passed in 1729. The defence 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 council’s 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 5th August 1775 at the Cooly Bazar near Fort William.

3

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 Kumar’s 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: 1. 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 oyer and terminer 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?

4 At 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 1728 was 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 upto 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 Nandkumar’s trial thus becomes unlawful. Moreover quite a good amount of this law was repugnant to the customs and morals of the Indian people.

CERTAIN PECULIAR FEATURES OF THE TRIAL •

Every judge of the Supreme Court cross-examined the defence witnesses due to which the whole defence of Raja Nandkumar collapsed. Judges took the unusual course themselves in cross-examining the witnesses and ‘that somewhat severely’. Indian witnesses were not conversant with the English law and procedure and this shattered the whole defence of Nandkumar. Criticizing the attitude of the judges H.E. Busteed wrote, “ The desire of the judges was to break down Nandkumar’s witnesses, in particular the Chief Justice’s manner was bad throughout and that the summing up was unfavourable.”

•

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 favour of Nandkumar though there could not perhaps be a strong case deserving exercise of the

5 court’s 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 1728 under 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 the very beginning of Nandkumar’s trial. Keith has rightly said, “ The sentence in any event, as a matter of plain duty, have been respited by the court, but Hastings’ private secretary intervened to prevent such action, and the councilors did nothing.”

•

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 fides of the Judge of the Supreme Court and

the fate which Nandkumar met was due to a pre-determined plan. Edmund Burke very correctly narrated the popular view in his speech on “Fox’s India Bill” that “Raja Nandkumar was by an insult on everything which India holds respectable and sacred, hanged in the face of all his nation, by the 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.”

6

TRIAL OF NANDKUMAR : A Judicial Murder

Many English historians expressed the view that Nandkumar was tried and executed by Impey at the instance of Hastings. “Men will never agree”, P.E. Roberts writes, “as to the meaning of this somewhat mysterious sequence of events, for the key to them lies in the ambiguous and doubtful region of secret motives and desires. The incident created an extraordinary impression and it was naturally believed for a long time that Nandkumar had the penalty of death nominally for forgery, but really for having dared to accuse the governor general.” Those who accuse Impey and Warren Hastings allege that Hastings first tried to ruin Nandkumar on a conspiracy charge but after realizing that it did not implicate Nand Kumar directly, he got him capitally indicted on a charge of forgery preferred ostensibly by Mohan Prasad. Nandkumar’s trial has always been looked upon with suspicion. Macualay, Mill and a host of other historians have accused Chief Justice Impey of committing a judicial murder. It has been suggested that Nandkumar was a victim of Hastings’ wrath ; that Nandkumar was tried ostensibly for forgery but really for his daring to bring charges of corruption against the governor general. Impey was a good friend of Warren Hastings. It has therefore been suggested that Warren Hastings conspired with Impey to put Nandkumar out of Hastings’ way and thus served as a willing tool to gratify the governor general. Two of the strongest circumstances against Impey were his friendship with Hastings and the commencement of Nandkumar’s trial within a few days of his accusing the governor general. Then the way the trial was conducted also raised strong doubts about the court’s impartiality and bona fides. Nand Kumar had presented a petition to the Council of the following effect which was translated into English after his execution and is cited by Stephen: “For the fault of representing at this time a just fact which for the interest of the king and the relief of the people in a small degree made known, many English gentlemen have become my enemies and having no other means to conceal their own action, deeming of destruction of the utmost expediency for themselves, revived an old affair of Mohan Prasad’s which had formerly been repeatedly found to be false; and the

7 governor knowing Mohan Prasad to be a notorious liar, turned him out of his house, and themselves becoming his aiders and abettors and Lord Impey and other Justices have tried me by the English laws, which are contrary to the customs of this country, in which there was never any such administration of justice before, and taking the evidence of my enemies in proof of my crime, have condemned me to death. But by my death the King’s justice will let the actions of no person remain concealed; and now that the hour of death approaches I shall not for the sake of this world be regardless of the next, but represent the gentlemen of the council. The forgery of the bond of which I am accused never proceeded from me. If I am unjustly out to death, I will with my family demand justice in the next life. They put me to death out of enmity and from partiality to the gentlemen who have betrayed their trust, and in this case the thread of life being cut. I in my last moment again request that you gentlemen will write my case particularly to the just King of England.” But the prayer was unheard and respite was not granted by the council. According to Lord Macualay, “Impey acted unjustly in refusing respite to Nandkumar; Hastings, three or 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 words may safely be taken to refer to Impey’s assistance in Nandkumar’s trial. “No Indian after Nandkumar was executed for the crime of forgery and in 1802 the Chief Justice expressly admitted that it was not capital.” Beveridge points out that the judges, jury and the counsels were all foreigners all unacquainted with the language of the witnesses and Nandkumar himself. The interpreter through whom the trial was conducted was not very proficient in the Bengali language. Moreover he points out that the defence counsel was not a barrister and so depended on the Chief Justice for his position and thus could not take an independent line lest Impey should feel offended. Beveridge definitely asserts that there is a strong circumstantial evidence that Hastings was the real prosecutor. The trial was unfairly conducted; the judges’ examination of the witnesses was inquisitorial and minute and the Chief Justice hanged Nandkumar in order to serve a political purpose when the forgery was not conclusively proved. Beveridge expresses his resentment in the vigorous words, “What I and every honest man who knows the

8 facts blame Impey for, is that he allowed himself to be prejudiced by his partiality for Hastings, and his hatred of the majority and that he hanged Nandkumar in order that peculators in general, and his friends and patron Warren Hastings in particular might be safe.” However, contrary to all the above views, Stephen, who had made a detailed study of Nandkumar’s trial, justifies the conduct of both Impey and Warren Hastings. He states, “Mohan Prasad was the real substantial prosecutor of Nandkumar and that Hastings had nothing to do with the prosecution and that there was not any conspiracy or understanding between Hastings and Impey in relation to Nandkumar or in relation to his trial or execution.” He supports his views by saying that the trial was held by four judges and 12 jury men all of whom could not have been in conspiracy against Nandkumar. Dr. B.N.Pandey has taken views similar to those of Stephens’ and has supported Impey’s decision by which the English Act of 1728 was extended to India. Opinions are thus varied as to the nature of the trial. Macualay, Mill, Beveridge, Roberts have condemned the trial as a mockery of law whereas Stephens and Dr. B.N Pandey have found the trial to be not abnoxious. Finally, P.E. Roberts is of the opinion that, “Even if we hold it established that there was no judicial murder, there was certainly something equivalent to miscarriage of justice. For that, however, the Supreme Court, in the first instance, Hastings’ opponents on the council subsequently, were mainly responsible.” Thus it has been rightly called as a “judicial murder.” What is most significant to note here is the fact that forgery has never been a capital offence in our country. Nand Kumar could not have been executed on the charge of forgery had his trial been conducted under India’s own law. Not only the charges were not proved satisfactorily, Raja Nand Kumar had been tried under an imported law by twelve members of the Jury all of whom were foreigners and had absolutely no knowledge of Indian laws. Even enlightened Englishmen called Nand Kumar’s execution a judicial murder. It is rightly said that the British came to India not to help Indians but to help themselves.

9

BOOKS TO BE REFERRED



B.L. Grover and S. Grover, “A New Look at Modern Indian History”.



V.D. Kulshreshtra, revised by B.M. Gandhi, “Landmarks in Indian Legal and Constitutional History”, Eighth Edition, Eastern Book Company, 2005.



Prof. M.P. Jain, “Outlines of Indian Legal and Constitutional History”, Sixth Edition, Wadhwa Nagpur, 2006.



J.K. Mittal, “Indian Legal History”, Tenth Edition, Central Law Agency, 2006.