vagueness in the crucial area of relationship between the

Company and the Supreme Court.

(v) The two distinct and parallel judicial systems the Supreme

Court in the Presidency Towns and Adalat in the Mufassil

area the question of soon gave the Supreme Court cliamed

jurisdiction over the example, the population which was

opposed by the Council of the Company.

(vi) Raja Nandkumar's, Radha Charan, Kamaluddin,

Saropchand Patna, Cossijurah etc cases provide glaring

examples of lacunae and defective provisions of the

Regulating Act and the Charter of 1774.

Thus though the Supreme Court was designed to be

independent in discharging its functions, two fundamental things-

shortcomings in the Regulating Act and the Charter and the violent

interference of the executive- did not allow it to work

independently.

Fourth Period: Era of Unification: From 1861 till the

Independence in 1947 (Judicial Reform under the Direct

British Rule).

Unification:
This period may be divided into two sub-heads: from 1861
till 1935 (the era of High Court); and from 1935 till 1947 (the era of
High Court and the Federal Court).
 2

As a result of severe clash between the executive and the

Supreme Court, within only seven years time the Supreme Court

came to be a body disliked by all. Petitions in the form of allegation

were submitted to the King of England not only by the Governor-

General but also by the inhabitants of Bengal which followed by

the appointment of a Select Committee in 1780 to enquire into

administration of justice in Bengal. The Committee's report led to

the passage of the Act of Settlement, 1781 which in fact curtailed

the power of the Supreme Court to accommodate the Council's

opinion. The Supreme Court now was deprived of its jurisdiction in

revenue matters and Company's Court. Though the plan did away

with the clash between the executive and judiciary, it virtually

undermined the position and prestige of the Supreme Court as a

highest court and also as a court of record, for no longer was it in

a position to control the executive. Secondly, the Supreme Court

continued its interpretation of 'constructive inhabitancy' whereby it

exercised jurisdiction over many persons residing outside

Presidency Towns. Again. Mufassil courts had jurisdiction over

these persons. Third, problems continued to arise regarding

concurrent jurisdiction of the two sets of courts. At times the

Supreme Court and Mufassil Courts passed conflicting decrees.

Fourth, serious conflicts arose in execution proceedings. The

process of the Supreme Court ran through the Mufassil where it

could execute it in Presidency Towns. On the other hand, the

Mufassil courts could not execute its decree in Presidency Towns.

 3

To execute it in the Presidency Towns separate suit was to be filed

in the Supreme Court for its recognition. Against the background

of this unsatisfactory state of affairs gradually opinion began to

crystallise in favour of merger and consolidation of the two rival

systems.

The first important step to unite the two sets of courts was

taken in 1853, when the first Law Commission was established in

India and an all India Legislature was created whose laws were to

be binding on all courts whether established by the Royal Charter

or the Company's authority.

The second step was the appointment of the second Law

Commission which was assigned to formulate a scheme of

amalgamation of the Sadar Adalats and the Supreme Court and

also to prepare codes of procedure to be applied to all courts.

The third step was the dissolution of the company and the

taking over the Government of India by the British Crown in 1858

following the event of mutiny in 1857. This ultimately paved the

way of unification much easier.

The final step was taken with the enactment of three uniform

codes (Civil Procedure Code, Criminal Procedure Code and Penal

Code). With the achievement of these common legal fabric, the

stage was set for the union of the two judicial systems and this

was finally done by the British Parliament in 1861 by enacting the

 4

Indian High Courts Act which provided for the creation of the High

Courts in three Presidency Towns by merging the Supreme Court

and Sadar Adalats. The Charter for the Calcutta High Court was

issued in 1862 and the High Court was established on 2nd July

1862.

Judicial System after the Unification

a. Two parallel judicial systems, namely, the Company's courts

in Mufassil areas and three Supreme Courts (King's Courts)

in three Presidency Towns were merged into a unified system

under three High Courts of Judicature at three Presidency

Towns.

b. The Supreme Courts and the Courts of Sadar Diwani Adalat

and Sadar Nizamat Adalat were abolished.

c. The ordinary original jurisdiction of the High Court was

limited to the local limits of the Presidency Towns. Its

predecessor the erstwhile Supreme Court did in fact exercise

a broader jurisdiction in the sense that in certain

circumstances persons and property beyond the local limits

of the presidency towns fell within its jurisdiction.

d. In its ordinary civil jurisdiction the High Court was

empowered to try and determine suits of every description

except those falling within the jurisdiction of the Small

Causes Courts.
 5

e. The High Court had original criminal jurisdiction within the

local limits of its civil jurisdiction.

f. The High Court exercised its appellate jurisdiction to hear

appeals from both civil and criminal courts from which

appeals were preferred to the Sadar Diwani and Sadar

Nizamat Adalats. To be more specific, the original side of the

High Court was the immediate successor to the Supreme

Court and the appellate side of the High Court was the

immediate successor of the Sadar Diwani Adalat and Sadar

Nizamat Adalat.

g. The High Court had supervisory jurisdiction over all

subordinate courts both civil and criminal.

h. Unlike the erstwhile Supreme Court, the High Court was

empowered to exercise jurisdiction over revenue.

i. A further appeal from the decision of the High Court

involving a sum not less than Rs. 10,000 lay to the Privy

Council. The High Court was also empowered to certify that

the case was fit one for appeal to the Privy Council.

Aftermath of Unification: Regular Hierarchy of Civil And

Criminal Courts

After establishment of the High Courts, a regular hierarchy

of civil courts were established by Civil Courts Act 1887. On the

criminal side the Criminal Procedure Code 1898 re-organised all

criminal courts. The present system of both civil and criminal

 6

courts in Bangladesh have their legal basis in Civil Courts Act

18871 and the Criminal Procedure Code 18982. Section 3 of the

Civil Courts Act created the following four classes of civil courts:

(1) the Court of the District Judge:

(2) the Court of the Additional Judge;

(3) the Court of the Subordinate Judge; and

(4) the Court of the Munsif.

Apart from the abovementioned four types of civil courts, the

Courts of Small Causes operated in both Presidency Towns and

Mufassil area were retained by the Small Causes Courts Act, 1887.

In criminal side the Code of Criminal Procedure, 1898 the

operation of which extended to the whole of the British India

provided for the following five classes of criminal courts:

(1) Courts of Session;

(2) Presidency Magistrates;

(3) Magistrates of the First Class;

(4) Magistrates of the Second Class; and

(5) Magistrates of the Third Class.

1. This Act of 1887 (Act No. XII of 1887) was entitled 'Bengal,

Agra and Assam Civil Courts Act 1887. This Act was passed by the

then Governor-General and his Council as he had the power to

make law under the Indian Councils Act. 1861.

 7

2. This Act was also passed by the Governor-General and his

Council under the Indian Council Act, 1892.

Structural Shape of the Legal System after the Unification in

the Province of Bengal

Privy Council

High Court

Court of District Court of Session

Judge Judge

Court of Additional Court of Presidency

District Judge Magistrates

Court of Subordinate Court of First Class

Judge Magistrates

Court of Munsif Court of Second

Class Magistrates

Court of Third Class

Magistrates

The Era of Federal Court and the High Court

The Government of India Act 1935 changed the structure of

the Indian Government from 'unitary' to that of 'federal', type. It,

therefore, distributed powers between the centre and the

constituent units. And consequently it had provided for the

establishment of a Federal Court. The Federal Court of India was

inaugurated on 15 October 1937. Below is the structure of judicial

system after the Government of India Act 1935 which follows the

discussion on relationship and jurisdiction of the Federal Court.

 8

The Legal System of Bangladesh

Privy Council

Federal Court

High Court

Court of District Court of Session

Judge Judge

Court of Additional Court of Presidency

District Judge Magistrates

Court of Subordinate Court of First Class

Judge Magistrates

Court of Munsif Court of Second

Class Magistrates

Court of Third Class

Magistrates

Constitution and Jurisdiction of the Federal Court

a. The Federal court was composed of three judges- one Chief

Justice and two puisne judges. A person having (i) five years

experience as a judge of the High Court; or (ii) a barrister of

at least ten years standing; or (iii) a pleader/ advocate in the

High Court having ten years standing was qualified to be a

judge in the Federal Court.

b. The judges were appointed by His Majesty and would hold

the office until the age of sixty five.

C. The Federal Court was given exclusive jurisdiction to decide

cases between the Centre and the units. Its advisory

jurisdiction was limited only to those cases which were

 9

referred to it by the Governor-General for its advise on any

legal question of public importance.

d. This court also exercised appellate jurisdiction from the

decisions of the High Court but it was a very limited one. An

appeal was allowed to the Federal Court from any judgment,

decree or final order of a High Court, if the High Court

certified that the case involved a substantial question of law

as to the interpretation of the constitution.

e. An appeal would lie to the Privy Council from any judgment

of the Federal Court given by it in the exercise of its original

jurisdiction, and in any other case by leave of the Federal

Court or of the Privy Council itself.

f. Apart from the cases in which appeals from the High Courts

lay to the Federal Court, the system of appeals from the High

Courts to the Privy Council, which had been in operation

hitherto, was left intact and unaffected.

The Independence and the Aftermath

The British Parliament declared India and Pakistan as

independent Dominions on the 15th of August, 1947 by the Indian

Independence Act 1947. This Act also provided that until the new

constitutions were framed for independent India and Pakistan, the

governments of India and Pakistan were to be run according to the

Government of India Act 1935. Accordingly in both India and

Pakistan the Federal Court was retained to function until the

 10

highest judicial organs were established under new constitutions.

In 1949 the Indian Constituent Assembly passed the Abolition of

the Privy Council Jurisdiction Act, 1949 which abolished the

system of appeal to the Privy Council from India.

In 1950 after the adoption of the Constitution of independent

India the Federal Court itself was replaced by the Supreme Court

of India and all the Federal Court judges became the judges of the

Indian Supreme Court.

On independence in 1947 immediately by an order of the

Governor- General of Pakistan a new Federal Court was

established at Karachi according to the provisions of the

Government of India Act 1935. By another order (the High Courts

(Bengal) Order 1947) a High Court was established out of

constitutional necessity in Dhaka. Judicial structure in all other

area remained same as it was before 1947. As like as India the

Federal Court Order allowed the Federal Court of Pakistan and

High Courts in provinces to continue as subordinate courts to the

Privy Council for the time being. In 1950 two important Acts were

passed- the Federal Court (enlargement of Jurisdiction) Act and

the Privy Council (Abolition of Jurisdiction) Act. Under these two

Acts Pakistan's tie with the Privy Council was severed and the

Federal Court appeared as the highest court in Pakistan and it

continued till 1956 when the Supreme Court of Pakistan was

established under the new constitution of Pakistan.

 11

Development of Judicial System in Mufassil Area

As mentioned earlier the evolution of judicial institutions in

British India can be traced from two sides of its development: (a)

the evolution of judicial institutions (Royal Courts) in the

Presidency Towns; and (b) the evolution of judicial institutions

(Company's Courts) in Mufassil area, i.e., the territory beyond the

presidency towns. The evolution of judicial system in Presidency

Towns started with the Charter of 1726 which passed through the

era of the Mayor's Court and then the Supreme Court and then

culminated into the unification by establishment of High Courts in

1861. This has been discussed above. On the other hand, the

evolution of judicial systems in the Mufassil area started in 1772

with the judicial plan of Warren Hastings in Bengal, Bihar and

Orissa. Unlike in the Presidency Towns, the whole judicial

development in the Mufassil area took place at the absolute control

of the Company. The elementary system of judiciary established by

Hasting's was in time modified. improved and redefined by

different Lords. As a result "Bengal served as a laboratory where

experiments were made in the adalat system, and when workable

results were obtained they were transmitted to the provinces of

Bombay and Madras."! Because of the division of Presidency Towns

and Mufassil area the judicial system operated by Crown Courts in

Presidency Towns came to be known as Presidency system of

justice and the system of the company's court in Mufassil area

 12

came to be known as the provincial or Mufassil system of justice.

Cowell stated that this two separate streams of judiciary flowed in

the province of Bengal for 88 years starting from 1772 and ending

with the unification of these two systems in 1861.

1 Jain, M.P. Outlines of Indian Legal History, 5 th ed, 1993.

Warren Hasting's Judicial Plan of 1772:

Beyond the Presidency Town of Calcutta the first territonal

acquisition of the company consisted of Bengal, Bihar, and Orissa.

After the grant of Diwani in 1765 the company did not change

anything as to criminal courts were till 1772 at the hand of natives. In

1772 with a view to regulating the till 1772 the hadministration of

justice Hastings divided the whole territory of Bengal, Bihar and

Orissa into a number of districts taking each as a unit. The judicial

organisation took a new turn which was as follows:

Civil Judiciary Criminal Judiciary

Sadar Diwani Adalat Sadar Nizamat Adalat

(Capital) (Capital)

Mufassil Diwani Adalat Mufassil Faujdari Adalat

(District) (District)

Civil Courts:

(b) Sadar Diwani Adalat was the chief court of Appeal at the
capital presided over by the Governor-in-Council. It heard
appeals from the Mufassil Diwani Adalat.
 13

(c) Mufassil Diwani Adalat was established at each district with

a collector, an English man as the judge. Appeal against its

decision in cases above Rs. 500 lay to the Sadar Diwani

Adalat.

Criminal Courts:

(a) Sadar Nizamat Adalat was the chief court of criminal appeal

at the capital presided over by an Indian judge known as

Daroga-i-Adalat who was appointed by the Nawab on the

advice of the Governor.

(b) Mufassil Faujdari Adalat established in each district was

presided over by a collector to try all kinds of criminal cases.

Appeal lay to the Sadar Nizamat Adalat.

New Plan of 1774: Under this plan the whole territory of

Bengal, Bihar and Orissa was divided into 6 divisions each having

several districts. No change was brought into the criminal judiciary

but one court named Provincial Council or Provincial Sadar Adalat

was added to the civil judiciary at each division which was

presided over by 4/5 servants of the company. This court had

three-fold functions: (i) looking after the revenue collection; (ii)

hearing appeals in civil cases; and (iii) deciding civil cases as a

court of first instance at its seat. The court structure in the civil

judiciary came to be as follows:

Civil Judiciary Criminal Judiciary

Sadar Diwani Adalat Same as above

(Capital)
 14

Provincial Council
(Division)

Mufassil Diwani Adalat

(District)
Judicial Plan of 1780: The most important feature of this

plan was the separation of revenue from the administration of

justice. The Provincial Council was divested of their judicial work

and were to confine themselves only to the collection of revenue. A

separate Provincial Diwani Adalat was established in each of the

six divisions. This adalat was presided over by a servant of the

company known as the Superintendent of the Diwani Adalat. The

decision of this court were final in cases involving up to Rs. 1000.

In matters of higher value appeal lay to the Sadar Diwani Adalalt.

The structure of civil judiciary took the following shape:

Civil Judiciary Criminal Judiciary

Sadar Diwani Adalat Same as above

(Capital)

Provincial Diwani Adalat

(Division)

Mufassil Diwani Adalat

(District)

Judicial Reforms by Lord Cornwallis (1787-1793):

In 1781 Elijah Empay who was the Chief Justice of the

Calcutta Supreme Court was appointed by the company as the

Chief Justice of the Sadar Diwam Adalat as well. After being so

appointed Empay introduced some important reforms like the

number of Mufassil Diwani Adalat was increased from 6 to 18; a

 15

Civil Code was compiled for the guidance of the Sadar Diwani and

Mufassil Diwani Adalat. Before any further improvement could be

done Justice Empay was recalled by the British Parliament to

explain his conduct in accepting two posts at the same time and

one being subordinate to the Governor-General and Council.

After Empay Lord Cornwallis introduced judicial changes in

three phases- in 1787; in 1790 and in 1793. After his scheme of 1793

the judicial structure took the following look:

Civil Judiciary Criminal Judiciary

Privy Council Sadar Nizamat Adalat

Sadar Diwani Adalat Provincial Court of Appeal and

(Capital) Circuit

Provincial Council The Magistrates’ Court

(Division) (District) (Collector)

Mufassil Diwani Adalat

(District)

Mufassil and Registrar’s Court

Appeal to the Privy Council: It was the Act of Settlement

1781 which for the first time made provisions for appeal to the

Privy Council from Sadar Diwani Adalat in civil suits valuing

Rs.50,000 or more.

Provincial Court of Appeal was established in place of four

Courts of Circuits in four divisions in the scheme of 1790. The

predecessor of this court was the Provincial Diwani Adalat under

 16

the plan of 1780. These four appeal courts had jurisdiction to try

both criminal and civil suits. Suits were sent to them by the

Government or Sadar Diwani Adalat. They could also entertain

original suit which a Mufassil Diwani Adalat referred to them. They

also heard appeals from all decisions of the Mufassil Diwani

Adalats.

Magistrate's Courts were not a separate tire of court;

magisterial powers of the collectors was shifted to the Mufassil

Diwani Adalat. Thus unlike earlier the Mufassil Diwani Adalat was

to exercise dual functions- civil and criminal.

Registrar's Court was a subordinate court run by a servant

of the company. It heard cases up to value of Rs.200. Up to Rs.25

the Registrar's court's decision was final and in case of more than

Rs. 25 appeal lay to the Provincial Court of Appeal.

Munsiff's Court was established within 10 miles of the

residence of the defendant to bring justice nearer to the people and

to save them from inconveniences of attending the diwani adalat.

This court presided over by tehsilder, landholders, farmers etc

native commissioner heard cases up to Rs.50 in value.

Judicial Reforms by Lord Hastings (1814)

 17

Though reforms were made by Sir John Shore in 1795, Lord

Wellesley in 1798 and Lord Minto in 1812, the big change was

done by Lord Hastings in 1814 which were as follows:

Civil Judiciary Criminal Judiciary

Privy Council Sadar Nizamat Adalat

Sadar Diwani Adalat Provincial Court of Appeal and

(Capital) Circuit

Provincial Court of Appeal The Magistrates’ Court

(Division) (District) (Collector)

Mufassil Diwani Adalat Assistant Magistrates

(District)

Registrar’s Court

Sadar Amins

Munsiff

Registrar's Court established in 1793 had jurisdiction to

hear cases up to Rs.500 during the time of Hastings.

Sadar Amin's Court was established by Wellesley at each district

headquarters was to decide cases up to Rs.100 which was raised

up to Rs. 150 by Hasting.

Munsiff's Court was established by Wellesley in every thana

to decide cases up to Rs.50 which was raised up to Rs.64 by

Hastings.

In 1796 the District Magistrates, i.e, Mufassil Diwani Adalat

were authorised to employ their assistants in execution of their

 18

duties. In 1807 Lord Minto enhanced the power of the District

Magistrates so as to enable them to award sentences up to six

months' imprisonment with a fine not exceeding Rs.200 and in

default, a further period of imprisonment not exceeding six

months. Thus the entire period of imprisonment under the

sentence of a District Magistrate could in no case exceed one year.

Cases deserving severe punishment than this had to be referred to

the Court of Circuit for trial.

Reform by Lord Bentick (1828-1835)

(a) Provincial Court of Appeal was abolished and the original

jurisdiction of the District Diwani Adalat became unlimited.

(b) Registrars no longer had any judicial power.

(c) A new court of Provincial Sadar Amin was created with

native judges at every district. This court had jurisdiction to

try cases up to Rs. 1000-5000.

(d) Sadar Amins were given criminal jurisdiction by Lord

Hastings In 1821. The District Magistrates could refer petty

criminal cases for trial and punishment to Sadar Armins.

(e) Earlier collectors were devoid of any judicial power. However,

in 1821 Hastings gave collectors magisterial powers. As a

result, two types of district magistrates' court appeared:

Judge-Magistrates and Collector-Magistrates.

(f) Circuit Courts were abolished and in their place

Commissioner of Revenue and Circuit were appointed at

 19

each division. They were under the control of the Sadar

Nizamat Adalat in their judicial functions and to the Board of

Revenue in their revenue duties. These Commissioners had

superintendence and control over the magistrates, police.

collectors and other executive revenue officers. They were to

exercise powers vested in the previous courts of circuits. The

Commissioners were also to conduct sessions and for this

purpose they were to exercise all powers and authority

hitherto exercised by the Circuit Court. With this new

arrangement coming into force, the Provincial Courts of

Appeal were to cease to act as Circuit Courts. A

Commissioner was therefore loaded with triple functions: he

had to supervise collection of revenue, superintend police

and try criminal cases. As a result of this pressure of the

Commissioners Lord Bentinck by the regulation No VIII of

1831 permitted the Commissioners to invest the Sadar

Diwani Adalats power to conduct sessions. The Sessions

Judges so appointed were to try cases committed to them by

the Magistrates. As the Commissioners were generally

unable to manage the sessions in addition to their duties, so

trial of criminal cases invariably came to be transferred to

the judges of the district adalats. Thus were born the District

and Sessions Courts which subsists even today and exercise

judicial functions in both civil and criminal matters.

 20

(g) The jurisdiction of the Munsiff court was increased to Rs.300

and Sadar Amins to Rs.1000.

The structural shape of the judiciary came to be as follows:

Civil Judiciary Criminal Judiciary

Privy Council Sadar Nizamat Adalat

Sadar Diwani Adalat Commissioner of Revenue and

(Capital) Circuit

Mufassil Diwani Adalat Court of Sessions Judge

(District)

Court of Provincial Sadar Amin Court of Judge Court of

Magistrates Collector
Magistrates

Court of Sadar Amins Court of Sadar

Amins

Court of Munsiff

The above structure of the judiciary remained intact until

the establishment of the High Court in 1861 under the unification

plan. As mentioned earlier, after the adoption of the Civil Courts

Act 1887 and the Code of Criminal Procedure 1898 both civil

courts and criminal courts were re-organised and these two Acts

are the legal basis of the present system of courts in Bangladesh.

Pakistan Period

As mentioned earlier, with the adoption of the Constitution

of 1956 the highest court in Pakistan became the Supreme Court

of Pakistan and the High Courts were retained at provinces as

 21

earlier. The subordinate courts were the same as in 1947. After the

adoption of the Constitution of 1962 the whole judicial structure

was the same as under the Constitution of 1956.