26 July 2010

Pin It

Part 25 - Indian Legal History - Charter of Calcutta High Court 1865

Part 25 - Indian Legal History - Charter of Calcutta High Court 1865

Reality views by sm –
Monday, July 26, 2010

The Indian High Courts Act 1861 was a permissive legislation and gave power to the crown to establish High Courts in India.
The charter for Calcutta high court was issued on May 14, 1862 and was published in Calcutta on the 1st July, 1862 establishing the High Court from the next day.

No law is perfect, as per this common natural rule, later it was found that charter of 1862 got the defects, problems thus the new charter was issued on 28th December 1865 with few modifications in the charter of 1862.

The provisions of charter of Calcutta High Court –
1.The High court of Calcutta was constituted into a court of record.

2.The court was to have an ordinary original civil jurisdiction within the local limits Calcutta or within such local limits as may from time to time be declared and prescribed by any law by any competent legislative authority in India.

3.High court took the place of Supreme Court which was abolished.

4.The High court even got the power to exercise try matrimonial causes of the non Christians on the civil side.

5.The High court got power under extraordinary original civil jurisdiction under which it was authorized to remove and try any suit pending in any court subject to its superintendence whenever it thought proper to do so, either on the agreement of the parties, or for the purpose of justice. This way High court got power to try cases of other courts when if High court felt that the lower court may not be able to do justice in that particular case.

6.Where plaintiff had several causes of action against a defendant such causes not being for immoveable property and if the High court had original jurisdiction in respect of one of such causes, the court could call on the defendant to show cause why the several causes of action be not joined together in one suit and the court could make such order for trial of such causes as it deemed fit.

7.The high court got power to hear appeals from civil courts subordinate to it, which is appellate civil jurisdiction.

8.A new provision was added in this appellate power, it was that whenever in a civil court judgment one of the judge or from division bench whenever such judges were equally divided in opinion, these types of appeals were known as letters patent appeals as they are based not on any law but on the specific clause in the charter. Under this provision the court could hear an appeal from its original civil jurisdiction.

9.Appeals in other civil cases lay from the High court to the Privy Council

10.The high court enjoyed extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any court subject to its superintendence.

11.The High court got power, authority to try at its discretion any person brought before it on charges preferred by the advocate general or by any magistrate or any other officer specially empowered by the government in that behalf. The main purpose behind this provision was to enable the high court to hold trials for offences committed out of the presidency town.

12.High court got power to hear appeals as well as be a court of reference and revision from the subordinate criminal courts.

13.High court got power to transfer criminal cases or appeal from one court to another.

14.The High court was required to apply the Indian Penal code 1860 while acting as court of original criminal jurisdiction or a court of appeal, reference or revision. Point to be noted today also we Indians use the British India made laws.

15.High court was given jurisdiction as an insolvency court.

16.High court got power to try all civil , criminal and maritime jurisdiction [ court of Admiralty ]

17.High court also enjoyed testamentary and intestate jurisdiction.

18.High court was supposed to follow civil procedure code 1859 and criminal procedure code 1861.

With the establishment of High court in Presidency towns, it unified the Supreme Court and sadar diwani adalat. Supreme Court got power from the crown and sadar adalat got power from company, but establishment of High court unified both systems of law.
This way first time all courts were brought under the one superior high court.
Before this Supreme Court and sadar adalat clashed with each other, but High court solved this problem. All the other High courts established in other Presidency towns enjoyed same powers with little difference.

Suggested Reading –

Part 26 - Indian Legal History – Creation of Allahabad High court and The Indian High Courts act 1911


Neha July 26, 2010  

great one as always..waiting for the next part..

sm,  July 27, 2010