that the law administered in Courts under the Companys government, from the assumption of the Dewanny
of Bengal, Bahar, and Orissa, was the Mahommedan law; at first by the hands of native Cazees and
Mufties, with some superintendence from the higher European servants of the Company; a superintendence
which, while undergoing sundry vicissitudes of system during the next 30 years, developed gradually
into a European judiciary, which again was set on an extended and quasi-permanent footing by Lord
Cornwalliss Government, in Regulation IX. of 1793 (see ADAWLUT). The Mahommedan law continued,
however, to be the professed basis of criminal jurisprudence, though modified more and more, as years
went on, by new Regulations, and by the recorded constructions and circular orders of the superior
Courts, until the accomplishment of the great changes which followed the Mutiny, and the assumption of
the direct government of India by the Crown (1858). The landmarks of change were (a) the enactment
of the Penal Code (Act XLV. of 1860), and (b) that of the Code of Criminal Procedure (Act. XXV. of 1861),
followed by (c) the establishment of the High Court (July 1, 1862), in which became merged both the
Supreme Court with its peculiar jurisdiction, and the (quondam-Companys) Sudder Courts of Review
and Appeal, civil and criminal (Dewanny Adawlat, and Nizamat Adawlut).
The authoritative exposition of the Mahommedan Law, in aid and guidance of the English judges, was the function of the Mahommedan Law-officer. He sat with the judge on the bench at Sessions, i.e. in the hearing of criminal cases committed by the magistrate for trial; and at the end of the trial he gave in his written record of the proceedings with his Futwa (q.v.) (see Regn. IX. 1793, sect. 47), which was his judgment as to the guilt of the accused, as to the definition of the crime, and as to its appropriate punishment according to Mahommedan Law. The judge was bound attentively to consider the futwa, and if it seemed to him to be consonant with natural justice, and also in conformity with the Mahommedan Law, he passed sentence (save in certain excepted cases) in its terms, and issued his warrant to the magistrate for execution of the sentence, unless it were one of death, in which case the proceedings had to be referred to the Sudder Nizamut for confirmation. In cases also where there was disagreement between the civilian judge and the Law- officer, either as to finding or sentence, the matter was referred to the Sudder Court for ultimate decision.
In 1832, certain modifications were introduced by law (Regn. VI. of that year), which declared that the futwa might be dispensed with either by referring the case for report to a punchayet (q.v.), which sat apart from the Court; or by constituting assessors in the trial (generally three in number). The frequent adoption of the latter alternative rendered the appearance of the Law-officer and his futwa much less universal as time went on. The post of Law-officer was indeed not actually abolished till 1864. But it would appear from enquiry that I have made, among friends of old standing in the Civil Service, that for some years before the issue of the Penal Code and the other reforms already mentioned, the Moolvee (maulavi) or Mahommedan Law-officer had, in some at least of the Bengal districts, practically ceased to sit with the judge, even in cases where no assessors were summoned.1 I cannot trace any legislative authority for this, nor any Circular of the Sudder Nizamut; and it is not easy, at this time of day, to obtain much personal testimony. But Sir George Yule (who was Judge of Rungpore and Bogra about 1855-56) writes thus:
The Moulvee-ship must have been abolished before I became a judge (I think), which was 2 or 3 years before the Mutiny; for I have no recollection of ever sitting with a Moulvee, and I had a great number of heavy criminal cases to try in Rungpore and Bogra. Assessors were substituted for the Moulvee in some cases, but I have no recollection of employing these either.The office of Law-officer was formally abolished by Act XI. of 1864.
In respect of civil litigation, it had been especially laid down (Regn. of Apr il 11, 1780, quoted below) that in suits regarding successions, inheritan ce, marriage, caste, and all religious usages and institutions, the Mahommedan laws with respect to Mahommedans, and the Hindu laws with respect to Hindus, were to be considered as the general rules by which the judges were to form their decisions. In the respective cases, it was laid down, the Mahommedan and Hindu law-officers of the court were to attend and expound the law.
In this note I have dealt only with the Mahommedan law - officer, whose presence and co-operation was so long (it has been seen) essential in a criminal trial. In
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