Rules for the grant of subsistence allowance and conveyance hire to complainants and witnesses[N.B. With reference to the Notes to rules 5 and 6 of Chap. XXXVII, the following rules made by H.E, the Governor under the powers conferred upon him under section 544 of the Code of Criminal Procedure appear to have consolidated and superseded the four sets of rules previously existing as printed in the 1930 edn. of this work in Appendix R at p. 619 thereof (i. e., (i) the rules “for the grant of subsistence allowance and conveyance hire to complainants and witnesses who are residents of Calcutta for attending the High Court in cases committed by the Presidency Magistrates,” sanctioned by the Government of India Judicial Letter No. 432 dated 12th April 1896; (ii) the rules “as to the expenses of complainants or witnesses coming from the mofussi] to attend criminal trials before the High Court on its Original Side”, (iii) the Orders dated 17th February 1910 and given by the judges “regarding fees and travelling expenses of witnesses in cases before the Sessions Court”, and (iv) the directions prescribed in Notification No. 119 J.D. dated 6th June 1924 as to “allowances to mufassal complainants and witnesses attending courts in Calcutta”). Though the orders made by the Hon’ble Judges have Not been expressly rescinded, it will be Noted that any orders made by the judges under section 544 are by the express provisions of the section, to be “subject to any rules made by the Local Government”. Moreover the rules which are Now here set out below were made by the Local Government after correspondence with the High Court. See File No. 279 ending with the letter dated 17th April 1939 from the Secretary to the Government of Bengal to the Registrar. It will be Noted also that these rules are also expressed to have been made “in supersession of all previous rules and orders on the subject.”]
- In these rules, unless the context otherwise requires-
(i) “Mufassal” means any area lying beyond a circle of five miles in radius, the centre of which is the Government House at Calcutta, but does Not include any place in Calcutta as defined in Clause (11) of section 3 of the Calcutta Municipal Act, 1923* Now Calcutta Municipal Corporation Act, 1980.
(ii) “Code” means the Code of Criminal Procedure, 1898 (Act V of 1898).
(iii) “Court” means the High Court on the Original Criminal Side or the Court of a Presidency Magistrate in Calcutta.
(iv) “Witness” includes Complainant.
- The expenses of witnesses (other than those who are Crown servants referred to in rule 3) attending for the purpose of any inquiry, trial or other proceeding before a Court shall be payable at the rates specified in the Schedule to these rules in the following cases:-
(i). in all cases in which they are bound over to appear at the Criminal Sessions of the High Court;
(ii) in cases instituted or carried on under the orders of, or with the sanction of, Government or any Court, or any public officer, and in cases the prosecution of which appears to the trying Court to be directly in furtherance of the interests of the public service;
(iii) in all cases where the accused is being prosecuted for a Non-bailable offence;
(iv) whenever a person is summoned as a witness under the provisions of section 540 of the Code;
(v) whenever a witness is summoned to give evidence on a commission directed to a Court:
Provided that the Presiding Judge or Officer of the Court may by order disallow the payment of the expenses of any witness in any case in which he may think fit to do so and every such order of disallowance passed by the Judge presiding over the Criminal Sessions of the High Court shall be communicated immediately to the Commissioner of Police.3. (1) Crown servants attending as witnesses for the purpose of any inquiry, trial or other proceeding before a Court shall receive No subsistence allowance or conveyance allowance from the Court but shall be paid departmentally such travelling allowance as is admissible under the Fundamental and Subsidiary Rules in the same manner as for journeys perFormed on duty. When summoned to give evidence in their private capacity they may be paid such travelling and conveyance allowance as private persons of similar rank are entitled to. A Crown servant summoned in his official capacity from a place within a five miles radius of the Government House at Calcutta may be paid such conveyance allowance as private persons of similar rank are entitled to.Exception. – The Police Surgeon shall Not be entitled to any expenses for attending as a witness before a Court.(2) Every Crown servant attending as a witness before a Court shall be given a certificate of attendance and a Note shall be made thereon of any expenses paid to him and as to whether he has attended in his official or in his private capacity.Explanation. – In this rule “Crown servant” means a person who is paid out of the revenues of a Province or of the GoverNor General in Council for services rendered to the Crown whole-time or otherwise but does Not include a person who receives occasional payment for casual and specific work.4. For the purpose of computing expenses which a Court is authorised to pay under these rules, witnesses shall be divided into four classes, A, B, C and D as follow:-Class A-Labouring classes.Class B-Lower middle classes.Class C-Upper middle classes.Class D-Persons of superior rank.Only actual expenses shall be paid to the witnesses subject to the maxima laid down in the scales in the Schedule. Journeys shall be made always by the cheapest possible route, and, wherever possible, by rail and steamer; in journeys by boat or road, witnesses shall, as far as possible, travel together. Purdanashin women when travelling by rail in a detached compartment shall be allowed any necessary extra expense that may be incurred by them for that purpose.Explanation. – “Actual expenses” in the case of a journey by rail shall mean the cheapest fare of the appropriate class for the journey or return journey obtainable on the date on which the journey was undertaken.5. Subsistence allowance shall cease immediately after the witness has been discharged by the Court.6. Witnesses summoned or bound over and attending from the mufassal may be paid advances towards their expenses by District or Subdivisional Magistrates. Such advances shall be reported by the paying officer with full details, in the case of witnesses summoned or bound over to attend the Criminal Sessions of the High Court, to the Commissioner of Police, and in the case of witnesses summoned to attend the Court of a Presidency Magistrate, to the Chief Presidency Magistrate, and the amounts so advanced shall be deducted from the amounts paid to such witnesses and be remitted to the paying Magistrate.7. Witnesses who are temporarily residing in Calcutta, or who have permanent or temporary houses in Calcutta, but follow occupations elsewhere, if detained in Calcutta in consequence of being required to give evidence in a Court, shall be.dealt with in the same manner as witnesses coming from the mufassal, and shall be entitled to their reasonable expenses under these rules, so far as these are applicable to the case, if they prove to the satisfaction of the presiding Judge or officer that they have been actually detained in Calcutta by reason of their being so required to give evidence:Provided that witnesses who have permanent or temporary houses in Calcutta, but follow occupations elsewhere shall be paid as witnesses Not coming rrom the mufassal if they attend their usual occupation from their house in Calcutta.8. Special cases Not covered by any of these rules in which a claim is made by a witness for subsistence money or travelling allowance or both may be dealt with on their merits, and at the discretion of the presiding Judge or officer and as nearly as may be in accordance with these rules, but in No case shall the maxima allowable under these rules be exceeded.9. Nothing in these rules shall affect the right of the High Court to award compensation out of the Fine Fund to prosecutors, or the payment of expenses or compensation under the provisions of section 545 of the Code.
Part II-High Court
- Presidency Magistrates shall furnish to the Commissioner of Police lists of all witnesses bound over to appear before the Criminal Sessions of the High Court showing as determined by them to which class as mentioned in rule 4 each witness belongs. When a witness appears before the Criminal Sessions of the High Court on a summons issued by the Court itself, the Clerk of the Crown shall determine the class to which he belongs, and Note it in the certificate referred to in rule 12.11.Witnesses attending from the mufassal and appearing before the Criminal Sessions of the High Court shall report their arrival to the Inspector, High Court, and to the Clerk of the Crown.12. The Clerk of the Crown shall furnish to each witness a certificate stating the number of days he has actually attended the Court to give evidence in the case and the class to which he belongs and the witness shall present it to the Commissioner of Police for payment of his expenses according to the provisions of these rules.13. In the cases provided for in rules 7 and 8 and articles 2(iii) and 3 of the Schedule, the Clerk of the Crown shall furnish to the witness a certificate stating the amount allowed by the Presiding Judge, and the Commissioner shall pay such amount to the party named in the certificate.14. Except as provided for payment of allowances to Crown servants departmentally under rule 2, and for payment of advances under rule 6, all payments under these rules to witnesses attending the Criminal Sessions of the High Court shall be made by the Commissioner of Police on production of the certificates referred to in rules 12 and 13.
Note. – No payment shall be made to a witness where the High Court has communicated an order disallowing his expenses (vide rule 2, proviso).
- If in any case the Commissioner of Police refuses to pay he expenses claimed by a witness, or pays or offers to pay less than the amount claimed, he shall, if required by such witness, certify his reason for so doing to the High Court and shall pay to the witness such sum as the High Court directs him to pay.
Part III-Courts of Presidency Magistrates
- Except as provided for payment of allowances to Crown servants departmentally under rule 2, and for payment of advances under rule 6, all payments to witnesses attending Courts of Presidency Magistrates shall be made by such Magistrates.17.Witnesses appearing before the Court of a Presidency Magistrate shall report their arrival to the Court Inspector attached to the Court to which they are summoned.
- Scale of maximum rates for witnesses attending Courts from places other than the mufassal:-
|Nature of expense||Class A||Class B||Class C||Class D|
- (i) Scale of maximum rates for witnesses attending Courts from the mufassal:-
|Nature of expense||Class A||Class B||Class C||Class D|
|Travelling expenses for journeys by road (outsides five mile radius)||Bus fares||Actual expenses Not exceeding two annas per mile.||Actual expenses Not exceeding two annas per mile.||Actual expenses Not exceeding four annas per mile.|
|Travelling expenses for journeys by steamer.||Lowest class||Inter or second where there is No inter class.||2nd class fare.||1st class fare.|
|Travelling expenses for journey by rail.||3rd class fare||Inter class fare||2nd class fare||1st class fare|
|Travelling expenses for journeys by country boat.||Actual expenses Not exceeding Re. 1 per diem.||Actual expenses Not exceeding Rs. 2 per diem.||Actual expenses Not exceeding Rs. 2 per diem||Actual expenses Not exceeding Rs. 2 per diem|
|Conveyance hire for the days of actual attendance attendance at Court||Bur or tram fare||Rs. 1||Rs. 2||Rs. 3|
|Diet money at Calcutta.||12 annas||Rs. 2-8||Rs. 4||Rs. 8|
|Diet money on the journey to Calcutta||12 annas||Rs. 2||Rs. 2-12||Rs. 5-8|
(ii) In addition to the above ferry tolls actually incurred shall be allowed at the authorised rates.
(iii) Cooly hire may also be allowed to respectable persons or to persons called upon to produce articles such as they would Not ordinarily be expected to carry themselves.
Special compensation-High Court Sessions
- If the Judge presiding over the Criminal Sessions of the High Court is of opinion that any witness following any trade or profession Or engaged in any commercial undertaking has suffered substantial loss by reason of his attendance, he may allow him in addition to the expenses to which he is entitled under whichever of the above scales is applicable to his case, reasonable compensation according to circumstances. Such compensation shall Not ordinarily exceed the rates prescribed in article 5 below, but shall be at the discretion of the Presiding Judge.4.Compensation under the foregoing article shall only be allowed for the number of days on which the attendance of the witness in a particular case shall be required, and No compensation shall be allowed to a witness for attendance except in the particular case in which his presence is required.The Crown Prosecutor shall inForm all witnesses for the prosecution of the approximate date when their evidence will be required so as to avoid witnesses attending Court unnecessarily on days on which they will Not be entitled to fees.5. Scale of ordinary maximum compensation for witnesses attending the Criminal Sessions of the High Court-
|Rate per diem.
|Not in the service of the Crown
In the service of the Crown, if entitled to private practice-
(i) in the case of Resident Surgeons and of those who are of the same grade.
(ii) in the case of those who are of a lower grade.
(iii) in the case of those who are
8 to 16
3 to 8
|(c)||Expert witnesses and others||16|
Special compensation-Presidency Magistrates’ Courts.
- If a Presidency Magistrate is of opinion that any witness following any trade or profession or engaged in any commercial undertaking has suffered substantial loss by reason of his attendance, he may allow him, in addition to the expenses to which he is entitled under whichever of the above scale is applicable to his case, reasonable compensation according to the scale in article 5. The case shall be reported to the Chief Presidency Magistrate for orders if the loss is shown to exceed Rs. 16, and to the Provincial Government by the Chief Presidency Magistrate if it exceeds Rs. 80 in all with a full statement of the facts and of the proof adduced in support of the claim.When summoning a witness of this class the Court may, at its discretion, if, feasible, fix the date for his appearance in such a way that the loss entailed to the witness may be reduced to a minimum.
Home Department resolution No. 10-1101, dated 21st July 1875
No fee to judicial officers acting as commissioners
The question whether Judicial Officers of one province should be permitted to accept remuneration for executing commissions issued by Courts of other provinces has been submitted to the Government of India. After considering the opinions received from certain Local Governments and from the High Court, Calcutta, the Government of India concur with the majority of these opinions, and with the Lieutenant-GoverNor of the North-Western Provinces, that the receipt of such fees by officers who are paid by Government for all they do in their official capacity is improper; and the GoverNor-General in Council hereby directs that the practice of taking such fees, wherever it exists Now, shall be discontinued.
Court’s letter, No. 435, dated 18th February 1878, to the First Moonsiff of Comillah
No fee to judicial officers acting as commissioners
Sir,I am directed to ackNowledge the receipt of your letter of the 26th ultimo to the address of the Registrar of the High Court, Original Side, and in reply to inForm you that, under orders issued by the Government of India in July 1875, you are Not entitled to any remuneration for the execution of the commission to examine witnesses in the suit Courjon v Lehuraux, or in similar cases.
Government, Home Department, Resolution No. 11-Jud1.-1173-1190, dated 8th September 1896
The Government of India issued the following orders on the subject of Government officers retaining fees for executing commissions issued by Civil Courts:-“In the Resolution in the Home Department, dated the 21 st July 1875, the Government of India directed the discontinuance of the practice, where it existed, of allowing officers in the Judicial Department of one Province to retain fees for executing commissions sent out by Courts of other Provinces. The general question of the disposal of fees received by Government officers for executing commissions issued by Civil Courts came under the consideration of the Government of India in the year 1888, with reference to certain orders of the Government of Bombay on the subject. It was decided that the prohibition contained in the Resolution of 1875 should apply to all cases in which Government servants might be called upon to execute commissions whether issued by Civil Courts of the Province in which they are employed or of other Provinces. As, however, these orders were Not published, they have Not hitherto taken general effect. They were issued upon the following considerations:-(1) the Government pays its officers for the whole of their time, and if they have any additional work to perform in a public capacity, it is the Government, and Not the officers themselves, who should receive the fees granted in respect of it; and(2) the practice of allowing salaried officers of Government to retain fees in return for the perFormance of such additional duties is open to the objection that it may tend to encourage them to seek such work to the detriment of their proper duties.”The matter has Now come under reconsideration on a reference from the Government of Madras, and theGoverNor-General in Council is of opinion that while the principle underlying the orders communicated to the Bombay Government should be maintained, it should be declared subject to certain limitations.””2. There can be No question as to the proper course when the officer to whom the commission is addressed acts in the exercise of his official functions, for example, when a commission to examine a witness is addressed by one Civil Court to another. In such cases fees realised from the applicant for a commission should be credited to Government. But there may be other cases in which it is Not possible to lay down the rule with such inflexibility. In such cases, as for example, commissions for local investigations, or to examine accounts, -1 officer, in executing a commission, may (besides giving his time id labour) be required to use privately-acquired skill or kNowledge ihich has No connection with his official work or kNowledge which s connected with his official work and has perhaps in great measure been acquired in the discharge of official duties.””3. In a case in which an officer is required to use privately-acquired skill or kNowledge which has No connection with his official work, there does Not appear to the GoverNor-General in Council to be any objection to his retaining a fee, provided that the commission was accepted with the consent of his official superior and executed without detriment to, or delay in, his official duties. And even in cases falling under the second head above referred to in which an officer is required to use kNowledge which connected with his official work, it has been customary in some Departments to allow Government servants to retain fees for executing commissions issued by Civil Court. Thus the rule in the Public Works Department Code permits an officer of the Department, called upon by a Court to act as a Commission to give reliable inFormation on certain technical points of Engineering, to retain such fees as are fixed by the Court. In cases of this nature where the consent of the officer’s official superior has been obtained, and where the additional duty in No way interferes with his regular work, the Government of India see No objection to his retaining the remuneration which, if Not a Government servant, he would receive for his trouble. Cases of this short, however, will obviously sometimes approximate to those in which an officer is called on to execute a commission in his capacity as Government servant, and in such cases discrimination will have to be exercised in permitting fees to be retained. The GoverNor-General in Council is prepared to leave it to Local Governments to decide in any doubtful cases of this nature whether the fee should be credited to Government or Not.”
Note on the subject of fines
By section 58 of Geo. III, c. 155 [which Statute was repealed as to a part by Act XXII of 1854, and as to the rest by the Criminal Procedure Code, X of 1872], Magistrates in the provinces were required to transmit fines imposed on British subjects, less amount applied in satisfaction to the party aggrieved, to the Clerk of the Crown or other officer of the Supreme Court empowered to receive fines.By 9 Geo. IV, c. 73, section 74, provision is made for payment to the. assignee of an insolvent’s estate of fines imposed for certain offences\whereby creditors of the estate have been defrauded or suffered loss.By 9 Geo. IV, c. 74, section 52 [repealed by the. High Courts’ Criminal Procedure Act X of 1875], power was given to the Supreme Court to apply “towards the reasonable costs of prosecuting offences, or of compensating prosecutors [whether the prosecution be before the said Court or any Justice of the peace], any part of the whole sum arising out offines levied by or transmitted to the said Courts :-Provided always that No such allowance for costs or compensation shall be made, except upon motion in open Court; and that Nothing herein contained shall prevent Justices of the Peace from making such allowances for costs or compensation to prosecutors as they might before have lawfully done.”By the Royal Letters Patent, dated 1st March 1851, a grant was made to the East India Company of all fines whether imposed “by the Supreme Court, or by any Court of Oyer and Terminer and Gaol Delivery or General Court of Quarter Sessions, or by any of the Justices of the Peace, Commissioners of Oyer and Terminer or Goal Delivery for the Presidency of Fort William in Bengal, or any of them, or by any other Court of Justice, or by any other person or persons there having lawful authority to order, charge adjudge, set, impose or award the same;power being reserved to the Supreme Court to make such satisfaction to prosecutors of inFormation or indictmentas to the said Court shall seem reasonable and fit our of any fine or fines to be set or imposed upon any person or persons who shall be convicted upon such proceedings respectively. And we will and order that such fines shall be paid according to such order to be given by the said Court”-Calcutta Gazette, 31st May 1852.By section 27 of 16 and 17 Vict., c. 95, dated 20th August 1853, all fines and penalties incurred by sentence of any Court of Justice within the territories of the East India Company were placed at the disposal of the Company in trust for Her majesty for the service of the Government of India.By the High Court’s Criminal Procedure Act, X of 1845, section 106 when the Court imposes a fine, it may order the whole or any part of it to be paid in compensation-
(a) for expenses properly incurred on the prosecution;
(b) for the offence complained of, where such offence can, in the opinion of the Court, be compensated by money; and it may, if it thinks fit, order such payments to be made for the benefit of the complainant, or the person injured, or both.
Similar power is given to the other Criminal Courts by the Criminal Procedure ‘Code, X of 1872, section 308.For the purpose of meeting sessions expenses, and awards to prosecutors, a sum of Rs. 5,000 was always retained in Court out of the fine fund and the excess over that sum was, from time to time, on the application of the Advocate-General, transferred to Government.On the 24th of November 1855, the Accountant-General of Bengal wrote to the Comptroller-General of Accounts, suggesting that all fines, less any sums awarded by order of the Court to prosecutors or inFormers, should be paid direct to the revenue account, and that all sessions contingent expenditure should be paid out of grants to be made for that purpose.On the 4th of December 1865, the Comptroller-General of Accounts addressed the Government of India on the subject, and submitted the following proposition:-“Under the above Letters Patent, payments have been made from time to time by the officers of the Court (out of the fines realized) to the credit of Government, and have been treated in the public accounts as ‘Government receipts.’ Beyond this record, and the entries in the Police accounts of the fines levied and remitted, No inFormation has been furnished to the Account Department relative to the disposal of the amounts which have been realized. No accounts of these fines have ever been rendered to Government, No have the payments which have been made from them undergone any check in the Account Department. It is understood that the fines are partly appropriated to the payment of charges for preparing jury lists, summoning jurors, defending pauper cases, dieting witnesses, and other expenses connected with the sessions charges to which the Letters Patent already quoted have Not apparently any reference.””It seems desirable that some check should be exercised by Government over these receipt; and I would beg to suggest, for consideration, that it would be expedient that the gross amount of fines paid into the High Court, less awards to prosecutors, should be remitted to the General Treasury at the Bank for credit to Government, the several descriptions of charges enumerated in the preceding paragraph being annually provided for in the Budget prepared by the Accountant-General, High Court, and submitted for the sanction of Government.”This correspondence was forwarded to the Court, with a letter from the Government of India, Home Department, No. 88, dated 5th January 1866, explaining that “there is No intention on the part of the Government of disturbing existing arrangements as to the disposal of a portion of these fines under the orders of the Court, but only of requiring a periodical statement of the receipts and expenditure on this account.”The Court having communicated its concurrence in the proposition of the Comptroller-General, the following Resolution was passed by the Government of India:”The GoverNor-General in Council is pleased to direct, that in future, all Police fines, less compensation awarded to prosecutors, etc., be paid into the Government account at the Bank of Bengal, the Commissioner of Police, Calcutta, rendering monthly to the Accountant-General, Bengal, an account of the fines realized and the compensation awarded out of them.””2. Fines imposed and realized by the High Court, less awards to prosecutors, etc. shall similarly be paid into the Bank to the credit of Government and accounted for to the Comptroller-General ofAccounts, while the sessions expenses for preparation of jury lists, summoning jurors, defending pauper suits, dieting witnesses, etc., shall be met out of the budget grant for the High Court. In the event of the grant for the current year being insufficient to meet such expenses, a supplemental estimate of them may be submitted to Government by the High Court.””3. These charges will be subject to the audit of the Government Auditor, in like manner with other expenditure of the High Court, and the Accountant-General to the Court will always retain in his hands a permanent advance of Rs. 500 (for which he will be responsible to Government) to meet any expenditure which must be incurred before his monthly contingent bills can be sent in.”
[The Calcutta High Court (Jurisdictional Limits) Act (XV of 1919)1Section 159 of 33 Geo III, c. 52, authorised the GoverNor-General in Council “to declare and prescribe” the limits of the Town of Calcutta-Pursuant thereto a proclamation, fixing the limits of Calcutta, was issued by the GoverNor-General in Council on 10th September, 1794-which Proclamation was set out in Appendix T, p. 555 of the 1st edition of this book.In 1815 the Indian Presidency Towns Act, 55 Geo. III, c. 84, was passed-which in section 1 after reciting 33 Geo. III, c. 52, section 159 continues-“And whereas by reason of the increase of the population of the Town of Calcutta, Madras and Bombay” is expedient that the several Governments of Fort William, etc., should be further empowered in manner hereinafter mentioned to extend from time to time the limits of the said several Towns” it was enacted that it should be lawful for the GoverNor-General in Council at Fort William, from time to time, as circumstances should in their judgment require, to extend the limits of Calcutta.Section 159 of 33 Geo. III, c. 52 was repealed be Act XIV of 1870 (the Repealing Act). To section 1 of that Act there was a proviso “that the repeal by this Act of any enactment shall Not affect any Act or Regulation in which such enactment has been applied, incorporated or referred to.”Query as to whether the proviso to section I of the Repealing Act and the use of the words “further empowered” in the Indian Presidency Towns Act had the effect of keeping alive section 159 of 33 Geo. III, c. 52. It will be Noticed that the power under the older Act is wider, viz., “to declare and prescribe”-than the latter Act which only gives “to extend.”The first extension of the limits of the Town came about in consequence of the removal of the old Presidency Jail, which stood on the site of the present Queen Victoria Memorial. The removal of that Jail came up for consideration in 1885; and again in 1908 when the Government proposed to extend, under the Indian Presidency Towns Act, 1815 (55 Geo. III, c. 84), the limits of the Town, so as to include the precincts of the new Jail, which had then been erected to the south-east of the Alipore Jail. To this proposal objection was taken by the Court on the ground that the intention of the Act of 1815 was that the extension of the limits should be effected by including an additional area, and Not by declaring that the precincts of an isolated building outside the prescribed limits of the town, should be included within the limits of the jurisdiction of the Court. A further difficulty, it was pointed out, would arise in conveying prisoners to and from the jail.In 1912 the Government addressed the Court again, dropping the idea of proceeding under the Act of 1815 and proposing to meet the difficulties of the situation by the passing of an Act amending section 491 of the Criminal Procedure Code.The Court, in its reply (dated 10th July, 1912), pointed out certain difficulties in the new proposal, and suggested that these might be met by converting what was then the Alipore Jail into the Presidency Jail, and that Jail instead of the newly-built Jail, should be brought within the jurisdiction of the High Court. This suggestion was accepted by the Government and effected by means of Notification No. 4078-P. D. and No. 4092-P. D. by the first of which (Notification, dated 15th October, 1913) the local limits were extended so as to include the area occupied by the old Alipore Jail and the Bhowanipore Road and by the second of the same date the old jail then technically kNown as the Alipore Central Jail was to be thenceforth called the Presidency jail and the new Central Jail at Kalighat be called the Central Jail Alipore (see pp. 558 to 560 of first edition).In 1914 the Government of Bengal addressed the Court on the advisability of having a Formal record of the boundaries of the Town of Calcutta as defined in the Proclamation of 1794 and of laying down permanent boundaries by erecting suitable pillars where necessary, and it was proposed to issue a Notification defining the new boundaries. A copy of the proposed Notification, and plans were forwarded. An examination of the latter appeared to show that the proposed new boundary-line was within the old boundary-line so that the local limits of the town were to that extent curtailed. The Court in its reply (4th March, 1915), pointed out that the power of the Government to curtail the local limits depended upon the true construction of certain Acts of the Legislature, which was a question of importance and possible doubt upon which legal advice should be taken. The Government then wrote (12th February, 1916) stating they had been advised that the proper course was for an Act to be passed by the Indian Legislature, as contemplated by clause 11 of the Letters Patent, 1865, declaring and prescribing the local limits of the ordinary original civil jurisdiction, and asking whether the Court would agree to such legislation declaring the boundaries as shown in the maps forwarded in 1914.It was then arranged that the present Registrar should examine the boundaries with Mr. J. C. Nixon, I.C.S., then Director of Surveys, Bengal. This was done, and their Report was forwarded to the Government, a copy of which is annexed to the Government’s letter No. 7032-P., dated 13th April 1917, to which the Court, on 16th July 1917, replied that “as at present advised and subject to any question which may arise when legislation is undertaken”-they concurred in the boundaries given in the report and made certain suggestions with a view to the new boundaries being properly demarcated.In March 1918, a draft of the Calcutta High Court (Original Jurisdiction) Bill was submitted to the Court for opinion. The Court’s reply of 23rd May, 1918, was to the effect that the Judges could express No opinion on the validity of the legislation proposed, as that might come before the Court judicially, but that otherwise, they had No objection to the principle of the Bill to make the boundaries certain. It was however suggested that the new Act should contain some saving clause with regard to suits in respect of land which land or a portion thereof, at the date of a transaction between parties, e.g., a mortgage or lease, was within but which, by the new boundary and at the time of the filing of the suit is outside the local limits of the Court’s Original Jurisdiction. The Judges were of opinion that parties should have the right to bring such suits in this Court.The new Act (Act XV of 1919) declaring and prescribing the new boundaries was passed and received the assent of the GoverNor-General on the 17th Slicember, 1919. It is set out below:-
Act No. XV of 1919
An Act to declare and prescribe the limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in BengalWhereas clause I1 of the Letters Patent for the High Court of Judicature at Fort William in Bengal, dated the 28th December, 1865, provides that the said High Court shall have and exercise ordinary original civil jurisdiction within such local limits as may from time to time be declared and prescribed by any law made by competent legislative authority for India:And whereas it is expedient so to declare and prescribe the local limits of the ordinary original civil jurisdiction of the said High Court;It is hereby enacted as follows :-1. Limits of ordinary original civil jurisdiction. – This Act may be called the Calcutta High Court (Jurisdictional Limits) Act, 1919.2. The ordinary original civil jurisdiction of the High Court of Judicature at For William in Bengal shall be exercised within the limits set out in the Schedule:Provided that Nothing in this Act shall affect any suit or other legal proceeding, pending in any Court at the date of the commencement of this Act.
(See Section 2)
- The limits within which the ordinary original civil jurisdiction of the High Court shall be exercised are as follows :-North.– A line commencing on the western side of the river Hooghly at a point where the straight line joining reference pillar No. I (in a compound on the river side of the Ghusri Cotton Mill, Howrah) and reference pillar No. II (near the south-western end on Chitpur Toll Bridge) meets the western water-line of the river Hooghly, and thence along the said line to the point where it meets the easter water-line of the river Hooghly near the south bank of the opening of Circular Canal; thence along the water-line of the south bank of Circular Canal passing under the Chitpur Toll Bridge, the Chitpur or Baghbazar Bridge to boundary pillar A on the eastern side of the southern pile of Barrackpore Bridge.East.– A line commencing from the said boundary pillar A following the eastern edge of the steps of the bridge to a point near the south-eastern corner of the immediate approach to the bridge marked by reference pillar III, which is on the boundary; thence by a straight line to boundary pillar B on the south-eastern corner of the junction of Cornwallis Street and Galif Street (Now marked with a Public Works Department stone); thence along the eastern side and the eastern side of the eastern payment of Cornwallis street in a series of regular links joining points marked by posts 1-3 to boundary pillar C at the North corner of the junction of Shambazar Street with Cornwallis Street; thence by a straight line to boundary pillar D on the solid south corner, of the said junction; thence in an approximately straight line along the solid eastern side of Upper Circular Road marked by posts 4-9 thence eastward following the corner round to boundary pillar E on the North corner of the junction of the unnamed road (which runs into Jadu Nath Mitra Lane) with Upper Circular Road; and thence by a straight line to boundary pillar F at the solid south corner of the junction of Jadu Nath Mitra Lane with Upper Circular Road; thence by posts 10-13 to boundary pillar G on the solid south corner of the junction of Ultadingi Road with Upper Circular Road; thence along the solid south side of Ultadingi Road in a series of continuous and approximately straight line joining point marked by posts 14-16 to boundary pillar H at the solid western corner of the junction of Ultadingi Road and Gauribere Lane; thence by the solid western side of Gauribere Lane marked by posts 17-21; thence by a straight line crossing the road diagonally to boundary pillar I on the solid south-eastern corner of the junction of Gauribere Lane and Ultadingi Junction Lane; thence along the solid eastern side of Ultadingi Junction Lane marked by posts 22-24 to boundary pillar J on the solid eastern corner of the junction of Ultadingi Junction Lane with Halsibagan Road; thence by a straight line to post 25 at the solid western corner of the said junction; thence along the solid North side of Halsibagan Road marked by post 26 to boundary pillar K on the North side Halsibagan Road directly opposite the solid eastern side of Upper Circular Road south of it; thence by a straight line to post 27 at the solid south corner of the Junction of Halsibagan Road with Upper Circular Road; thence by the solid eastern side of Upper Circular Road marked by posts 28-34 to post 35; thence turning east to boundary pillar L on the North side of Maniktola Road; thence by a straight line to post 36 at the south corner of the junction of Maniktola Road with Upper Circular Road; as the North-western corner of the garden of Kali Pada Batik; thence along the eastern side of the lane on the eastern side of the raised platForm road and marked by posts 37-49 to boundary pillar M at the solid North corner of the junction of Gas Street and Upper Circular Road; thence by a straight line to boundary pillar N at the solid south corner of the said junction; thence keeping again to the eastern side of the lane on the eastern side of the raised platForm road along a line marked by posts 50-61 excluding the recently-made Ladies’ Park to boundary pillar 0 near the North pillar of the North entrance to North Station, Sealdah; thence by a straight line to boundary pillar P at the south corner of that entrance; thence by the comparatively straight lines from pillar to pillar connecting boundary pillars P, Q, R, S and T adjacent to the pillars Forming the corners of the various approached to Sealdah Station; thence among the solid eastern side of Lower Circular Road marked by posts 62-64 to pillar 65; thence turning west to boundary pillar U at the North-western corner of the out-patients’ department of the Campbell Hospital; thence by a straight line marked by posts 66 68 to boundary pillar V on the corner of the platForm to the right of the North entrance to the Calcutta Corporation Central Stores; thence by post 69 turning east to post 70; thence by posts 71-76, boundary pillars W and X at the solid corners of the southern junction of Police Hospital Road with Lower Circular Road; thence by posts 77-80, to boundary pillars Y and Z on the solid corners of the junction of Beniapukur Lane with Lower Circular Road, by posts 81-86 to boundary pillars A, and B, at the solid corners of the junction ofNonapukur or Bijli Road and Lower Circular Road, posts 87, 88, to boundary pillar C1, near the south-western corner of the Circular Road burial ground; thence by a straight line to boundary pillar D on the other side of the tramway lines; thence post 89 eastward to post 90; thence to boundary pillars E1 and F1 at the solid corners of the junction of Karaya Bazar Road and Lower Circular Road, posts 91, 92 to boundary pillar G1 opposite to Theatre Road, posts 93, 94 to boundary pillar H1, a few feet south of the point directly opposite the junction of Auckland Place and Lower Circular Road and following the curve of the road by posts 95 and 96 to reference pillar IV (which is on the boundary) on the eastern side of the junction of Beck Bagan Lane with Lower Circular Road.South. – A line commencing from the said reference pillar (V in a straight line to boundary pillar II, on the western corner of the junction of Beck Bagan Lane with Lower Circular Road; thence along the solid south side of Lower Circular Road to boundary pillars J, and K, at the solid corners of the junction of Ballyganj Circular Road and Lower Circular Road; thence by the solid south side of Lower Circular Road marked by posts 97,98 boundary pillars L1, M1, at the solid corners of the junction of Lansdowne Road with Lower Circular Road, post 99 southward to post 100, westward to post 101 Northward to post 102 and westward to post 103, boundary pillars N, and 01 at the solid corners of the junction of Woodburn Road with Lower Circular Road, Posts 104, 105 boundary pillars P, and Q, at the solid corners of the junction of Lee Road with Lower Circular Road; thence by the straight line links but broken boundary line Formed by posts 106-113, to boundary pillar R, on the south-eastern corner of the junction of Chowringhee with Lower Circular Road; thence by an oblique straight line to boundary pillar 5, on the south-western corner of the said junction (near a stone marked FW. B-26); thence by a line representing the present limits of the holdings on the south Circular Road and marked by posts 114-116, boundary pillars T, and U, at the solid corners of the junction of Hans Chandra Mukherjee Road and Lower Circular Road, posts 117-121; thence to boundary pillar V, near the North corner of the junction of Bhowanipore Road and Lower Circular Road; thence following the curve of the corner and the eastern side of Bhowanipore Road and the surplus lands attached thereto by a series of straight line links joining points marked by posts 122-124, boundary pillars Wr and X, at the junction of Sambhunath Pandit Street and Bhowanipore Road, posts 125-128 turning eastward to boundary pillar Y, on the North side of Sankaripara Road, posts 129, 130 to boundary pillars Z, and A2 across the entrance of Ketrapati Road into Bhowanipore Road; thence by posts 131, 132 to boundary pillar B, on the North-eastern side of Alipore Bridge; thence along a straight line joining the said boundary pillar B, with subsidiary reference pillar VII on the south-eastern side of the said bridge to a point where that straight line meets the water-line of Tolly’s Nala; thence along the water-line of Tally’s Nala to the North¬eastern corner of the District Magistrate’s compound; near which is boundary pillar C2; thence along the irregular Northern boundary of the Magistrate’s compound marked by posts 133-141 to boundary pillar D, at the south corner of the entrance to the Civil Surgeon’s house from Thackeray Road; thence southward along the western boundary of the Magistrate’s compound by posts 142-145 and along the southern boundary of that compound marked by posts 147,148 to boundary pillar E2 on the Bank of Tolly’s Nala; thence continuing the straight line from post 148 to boundary pillar E2 till it meets the water-line of Tolly’s Nala; thence along the water-line of Tolly’s Nala to a point in a direct line with the North side of the masonry drain running outside the Jail Garden near which is boundary pillar F; thence along the North side of the said drain in a straight line across Motee Jheel to post 149 against the boundary of the compound of the Magistrate’s Court; thence North-ward along that boundary to post 150 and westward to post 151 and Northward again along the boundary of the Army Clothing Agency to post 152; thence westward on the south side of the lane to boundary pillar G2 at the North¬western corner of the Police Hospital compound; thence along the wall of the Alipore Central Jail facing Belvedere Road and marked by pillars 153-157 to the North-western corner of the junction of Belvedere Road and Jail Lane following the corner eastward to post 158 and continuing along the south side of Jail Lane to post 159; thence by a straight line to boundary pillar H2 at the acute corner of the junction of ReFormatory Street with Jail Lane; thence to boundary pillar 1 2on the North-western side of Alipore Bridge; thence to boundary pillar J2 on the North-eastern side of the said bridge; thence by the solid south-western and western side of Bhownipore Road marked by posts 160-167; thence following the western corner of the junction of Bhowanipore Road and Lower Circular Road to boundary pillar K2 thence along the solid south side of Lower Circular Road following the sweep of the railings and marked by posts 168-172 to boundary pillar L, on the Lower Circular Road and east of its junction with Belvedere Road; thence following the natural bends of the corner marked by posts 173 and 174 to boundary pillar M2 on the eastern side of Belvedere Road; thence along the eastern side of Belvedere Road Now indicated by wooden railings and marked by post 175 to boundary pillar N2 on the North-eastern side of Zeerut Bridge; thence along the railings of the footpath on the eastern side of the bridge to boundary pillar 02 near its south eastern end; thence along a bent line following the shape of the bridge and marked by posts 176,177 to post 178 on the eastern side of the south extremity of the immediate approach to the bridge; thence by a straight line to boundary pillar P2 on the western side of the said extremity; thence turning North along the railings of the footpath on the western side of the bridge till it meets the water-line underneath the bridge; thence along the water-line of the south or Alipore bank of Tolly’s Nala trending Northwards under Hastings Bridge to a point where a straight line joining reference pillar V (near the south-western end of Hastings Bridge), to reference pillar VI (on the Howrah side of the river in a line with the Northern wall of the Bengal-Nagpur Railway Goods Yards) meets the water-line of the south bank of the bend of the Hooghly River, near the western side of the opening of Tolly’s Nala; thence continuing the said straight line till that said straight line meets the water-line of the Howrah side of the river Hooghly.West. – A line commencing from the point last defined along the water-line of the Howrah side of the River Hooghly to the western extremity of the Northern boundary.2. (a) When the expression “water-line” is used in this Schedule all pucca ghats and other objects permanently attached to the bank and in contact with the water shall be deemed to appertain to the area to which the land on that bank appertains, and the water in contract with such objects shall be deemed to appertain to the other side of the boundary. In places in the Schedule where the boundary is thus described the boundary line shall be the moving edge of the water wherever it may be at any time. In the case of bridges, however, the supporting pile in contact with the bank only shall be deemed to be permanently attached to the bank and the boundary-line across the bridge to be immediately above the water-line so described.
(b) The expression “solid side” or “solid corner” means the line or spot marked out by solid objects, such as a pucca wall or the face of a house, the wayside lands and pavements thus being all included in the adjacent road, street or lane.
Note submitted to the Hon’ble the Chief Justice
I have examined the records of this Court for several years and found that for over 50 years the Deputy Sheriff has acted as the Marshal of the Vice-Admiralty Court. He has always been independent of the Sheriff, save that when the services of an officer are required by the Marshal he has employed the Sheriff’s Officers such officers being under his orders as Deputy Sheriff. The employment of these officers may or may Not have been with the sanction of the Sheriff. There is Nothing to show what, if any, arrangement has existed on this point between the Sheriff and the Marshal or whether any remuneration is given by the Marshal to the Sheriff’s officers for services rendered to him. It is No part of the duty of the Sheriff’s officers, as such, to do work for the Marshal and it is Not improbable that some arrangement has existed and that some remuneration has been given by the Marshal to the officers employed by him.The order of the Hon’ble Sir Richard Garth, dated 2nd July, 1883, appointing the Deputy Sheriff for the time being to be the Marshal of the Vice-Admiralty Court appears to be a recognition of the long established practice and there can be No doubt that from the date of that order the Deputy Sheriff has been and will continue, until further order, to be the Marshal of the Vice-Admiralty Court, Now called the High Court as a Colonial Court of Admiralty.The accounts of the Registrar in Admiralty show that the Marshal acts as such in his own right and independently of the Sheriff. These accounts show that from the year 1858 the Marshal has paid into Court monies realised by him to the credit of the matters in which he has acted and that the Court has, out of the monies so paid in, made payments by cheques under orders of Court.I have been unable to find the books of accounts prior to 1858. It is quite true that the Deputy Sheriff is appointed by the Sheriff; but, once so appointed, he becomes, by virtue of the order of the Hon’ble Sir Richard Garth, Marshal of the Vice-Admiralty Court, Now the High Court as a Colonial Court of Admiralty. -The Sheriff is Not entitled to the fees of the Marshal who is in No way, as Marshal subject to the authority or the orders of the Sheriff. If the Sheriff desires to appropriate in whole or in part the fees of the Marshal he can only do so under a private arrangement entered into with the Deputy Sheriff but if there is No such arrangement the Sheriff canNot claim the Marshal’s fees or any part thereof as a matter of right.The records show that the Marshal may by Deed appoint a Deputy to do all acts which the Marshal himself could do and perForm. In the year 1864, Mr. Stephen Edward Collis, Marshal of the Vice-Admiralty Court, Calcutta appointed Mr. Richard Francis Stack to be his Deputy in the office of Marshal of the Vice-Admiralty Court and empowered him “to act as his Deputy in the said office and to transact all the usual and necessary business which is usually done and appertains to his office of Marshal of the Vice-Admiralty Court of Calcutta, and for the Marshal and in his name to sign, seal and execute all warrants, decrees, monitions or orders of the Vice-Admiralty Court and to make due return thereof and to Nominate and appoint Clerks and Bailiffs, Appraisers and Auctioneers and give receipts for all monies whatsoever to be received and collected in the office of the said Marshal” etc., etc. These deeds of deputation appear to have been frequently executed by the Marshal. The warrants of the Admiralty Court directed to the Marshal have been addressed and are still addressed to the Marshal and his Deputies. On the question that has arisen between the late Sheriff and the Marshal, there is No doubt that the latter is entitled in the absence of any private arrangement between him and.the Sheriff, to the fees payable to the Marshal.The Sheriff in his letter, dated 9th January 1911, to Mr. Pugh, refers to the order of Sir Richard Garth, dated 2nd July 1883, appointing the Deputy Sheriff for the time being to be the Marshal of the Vice-Admiralty Court and enquiries under what circumstances the order was made, whether it is a permanent order (meaning probably an irrevocable order), and whether Sir Richard Garth could by his order bind his successors. The order on the face of it shows that it is Not irrevocable. It is as follows-“Until further order I do hereby appoint the Deputy Sheriff for the time being to be the Marshal of the Vice-Admiralty Court.”It was open to the then Chief Justice, Sir Richard Garth, to pass another order which would have the effect of revoking his order of 2nd July 1883 and it was and is open to any succeeding Chief Justice to make any other order His Lordship may be pleased to make.
The Judgment of Peacock, C. J. in Kamtaproshad
Misser v. Ramalal Sookool
Special Appeal No. 2507 of 1868
Kamtaproshad Misser …. Appellant
Ramalal Sookool Respondent
Barristers who take precedence, inter se, from the date of being called to the bar in England, have the right of pre-audience before vakeels, and take precedence over attornies, both qua-attornies and qua-vakeels.Vakeels take precedence, inter se, from the date of admission.Peacock, C.J. – The question which has been raised in this case appears to me to be a very important one – Not merely as a particular question between the two gentlemen, one of whom claims the right of pre-audience as a barrister, and the other, as a vakeel, denies that right, but as a general question between two counsel, whether the barrister or the vakeel should be allowed to plead first in a case. It is exceedingly important that a client should kNow which of two counsel selected by him should first address the Court. If we constantly change the rule of practice on this point, the client will Not kNow whom he is to employ; and I think it very important that existing practice should be followed until it is altered.I kNow of No strict rule of law which says that an advocate in this Court shall take pre-audience, Not from the date of his being admitted in this Court, but from the date of his being called to the bar in England. Whether that practice is good or Not, we found it existing in the late Supreme Court and followed it in this Court and until there is some Notification given to persons interested in bringing suit in this Court, it would be injudicious on the part of this Court to change the practice and say that the right of pre-audience depends upon the date of admission in this Court.It was a well-established rule in England that barristers took precedence over attornies, and when the late Supreme Court was established, in which English law as a general rule was to be administered, there can be No doubt that the practice in England continued there, and barristers did take precedence. The rule is so well kNown in England that it can scarcely be imagined that the Legislature in England, or the Secretary of State for India, could be igNorant of that rule.We find that barristers were allowed by Act I of 1846 to practise in the Sudder Court, subject to the rules “applicable to pleaders relating to the language in which the Court is to be addressed or to any other matter.” By the terms “any other matter” I should say the Legislature meant any other matter of the same description. I do Not think that the Act intended to lay down any rule in the matter as to pre-audience Nor am I aware that there was any express rule in the late Sudder Court that the right of pre-audience among vakeels should depend upon the dates of their obtaining sururiuds. It was established, No doubt, by practice, and it may be said possibly by concession, but it was only a concession of that kind which was considered as of right according to the practice of the Court. By the subsequent Act of 1853, passed almost in similar words attornies were allowed to practise in the Sudder Court, in the same manner as barristers; but I am Not aware of any case in which, when an attorney and a barrister happened to be employed on the same side to conduct a suit, the attorney was allowed to take precedence of the barrister.We find that, in laying down the qualifications for Judges of the High Court, the Legislature treated a barrister of five years’ standing as qualified, whereas the term as regards the qualification of a vakeel was laid down to be ten years. There was a difference, thereof, made by the Legislature as regards qualification between the standing of a barrister and the standing of a vakeel.Attornies having been allowed by the Act to which I have referred to practise in the Sudder Court, it was considered reasonable and just that those who were at liberty to practise as attornies should be admitted as vakeels, and therefore every attorney of the late Supreme Court, who had been admitted as attorney previous to the establishment of the High Court, was admitted as a pleader of the High Court. Vakeels were expressly authorised by rules of this Court to practise at the Original Side of the Court in cases of extraordinary original civil jurisdiction. It can hardly be supposed then that, with the well-kNown practice before it, the Court intended that if a barrister and an attorney, who is newly made a vakeel in consequence of his being an attorney, should happen to be employed on the same side, the attorney should take precedence of the.barrister either with reference to the date of his being enrolled as a vakeel, or to the date of his original enrolment in the late Supreme Court. I think it was intended that the practice should l)e continued, and that if an attorney and a barrister should happen to appear together on the Original Side, the barrister should take the lead.Sir Charles Wood, in his letter which accompanied the first charter under which the High Court was established, says:-“In regard to the admission of advocates, vakeels and attornies the recommendations of the Law Commissioners have been followed. Under the existing practice, the advocate pleads, and attorney acts, for the suitors of the Supreme Court; and the vakeel both pleads and acts for the suitor of the Sudder Court, of which Court, the advocate and attorney of the Supreme Court are ex-officio vakeels. These terms are employed in the charter simply to express the functions of these several classes of practitioners. The advocate and attorney will respectively plead and act in the High Court, and the vakeel with both plead and act in the High Court as he did in the Sudder Court. Any person may apply to be admitted either as an advocate, or vakeel or attorney under the rules which the Court is authorised by the charter to make; and there is Nothing in the charter to prevent the admission of advocates and attornies to be also vakeels of the High Court, should the Judges consider such a course to be expedient.””The provision in the Act, section 2, clause 4, Which declares that pleaders of the Sudder Court who shall have been admitted as pleaders of the High Court shall be eligible, under certain conditions, to the Bench of the Court, implies that a discretionary power may be exercised as to the admission of the present pleaders of the Sudder Court to the bar of the High Court. This enactment will account to you for the ommission from the charter of any provision appointing all the present practitioners of the Supreme and Sudder Courts. I conclude, however, that unless in any special cases there are strong reasons to the contrary, the Court will admit the whole of the practitioners in the abolished Courts, at the date of their abolition, to be the first advocates, vakeels and attorneys of the High Court.””With reference to the concluding sentence of cl. 10, it is to be observed that the Letters Patent contain No provision reserving to the attornies of the present Supreme Court the right of pleading, after the issue of this charter, in the Insolvent Court as newly regulated by c1.17. No such provision, however, is necessary, as the Insolvent Court is a separate tribunal, Not affected by the Act authorizing the Letters Patent, and will continue a separate Court, though for the future, presided over by a Judge of the High Court. The attornies, therefore, will, as heretofore, practise in accordance with the rules of the Insolvent Court itself.”I apprehend that Sir Charles Wood never intended that as between advocates and attornies, both practising in Indian Courts, the attornies should take precedence of the advocates.There is No rule that I am aware of which says that an advocate or a vakeel of the High Court, both of whom are allowed to practise in the Mofussil Courts, is entitled to precedence over the vakeels of those Courts; but No doubt exists that, if a barrister goes to plead in the Munsiff’s Court, he takes precedence over the pleaders of the Munsiff’s Court, and also over pleaders of the Judge’s Court and over the several revenue agents, of the Criminal Courts, and other law agents. There is No express law on this point, but the practice regulates it.It appears to me that the practice regulates the law in this matter in this Court also and it is a practice which I never heard questioned in any way during the seven years since the Court was established, except in the case referred to, and which I do Not recollect myself, in which a vakeel of this Court may have claimed precedence over a barrister.For my own part, I always considered that the right of pre audience existed with the banisters, and I have always, made it my practice to call upon the advocates to move the Court by way of precedence to the vakeels if I saw them in Court, and I have generally called upon the vakeels according to the several dates of their being enrolled in this Court.As the rule at present exists, it appears to me that barristers have the right of pre-audience. I do Not say that I think it to be the best rule, or that it is a rule which may Not be altered, or that any regulation may Not be made to prevent pleaders of long standing from being preceded in the matter of addressing the Court by advocates of shorter standing. I only decide the case according to what I believe to be the prevailing practice of this Court, where clients have their own choice of selecting their counsel.The 12th March, 1869.
List of Gentlemen Possessed of Nautical Skill and Experience Competent to Serve as Assessors in the Calcutta High Court
The following names (arranged here alphabetically) were included in the two lists comprised in two Notifications dated 11th March, 1939, and 23rd March, 1939, published in the Calcutta Gazette dated 16th March, 1939, Part I, page 579; and in the Calcutta Gazette date 30th March, 1939, Part I, page 712 in which it was Notified, in effect, that the HoNourable the Chief Justice had been pleased to approve such lists showing the names of gentlemen possessed of nautical skill and experience, residing and having places of business within the jurisdiction of the High Court, who were competent to serve as Assessors in that Court sitting as a Colonial Court of Admiralty in cases of salvage, towage or collision.N.B. :-The pilots are only to sit on Courts in which questions of Pilotage are involved.
|1.||J. S. Davis||…||C/o. Mercantile Marine Deparment, 1, Hare Street, Calcutta,|
|2.||N. E. Garnett||…||do.|
|3.||E. E. King, M.C.||…||do.|
|4.||G T. Labey, M.C.||…||do.|
|5.||W. R. McClymont||…||do.|
|6.||L. J. Macdonald, M.C.||…||do.|
|7.||W. C. Mayston||…||do.|
|8.||P. Ridley, D.S.C. Dy.
Port Officer (Pilotage).
|1.||A.C. Davis||…||C /o. Mercantile Marine Department, 1, Hare Street, Calcutta.|
|9.||E. C. Rowlings||…||do.|
|Master Marines and others|
|1.||H.E. Alkin, Dy. Harbour Master (offing).||…||C/o. Office of the Commissioners for the Port of Calcutta.|
|2.||Dale||…||C/o. Messrs Andrew Yule & Co. Calcutta.|
|3.||B.S. Davis, Commander, R. N. (Retired.)||…||C/o. Office of the Commissioners for the Port of Calcutta.|
|4.||A.V. Fisher||…||C/o. Messrs Lardner North & Co., 1 Strand Road, Calcutta|
|5.||E.S. Graham, Commander, R.N. (Retired).||…||C/o. The Bengal Nagpur Railway.|
|6.||T. A. Harrison, Harbour Master.||…||C/o. Office of the Commissioners for the Port of Calcutta.|
|7.||A. Jack||…||C/o. Turner Morrison & Co., 6, Lyons Range, Calcutta.|
|8.||James Knox||…||C/o. Nippon Yusan Kaisya, 2, Clive Row, Calcutta.|
|9.||R.C. Last||…||C/o. Messrs Kilburn & Co. Fairlie House, Calcutta.|
|10.||I. Maclean||…||C/o. Messrs Turner Morrison & Co., 6, Lyons Range, Calcutta.|
|11.||Jas. Paterson||…||C/o. Messrs Norman Stewart & Co., 9, Clive Street, Calcutta.|
|12.||E.L. Pawsey. Commander, R.N. (Retired).
|…||C/o. Office of the Commissioners for the Port of Calcutta.|
|13.||H.R. Rankin||…||C/o. Messrs MackinNon Mac kenzie & Co., Calcutta.|
|14.||C.H.T. Seignior||…||C/o. Messrs Macneill & Co., Calcutta|
|15.||J.R. Sherman||…||C/o. Messrs Kilburn & Co., Fairlie House, Calcutta.|
A List of Gentlemen appointed to be Standing Commissioners for Oaths and Affidavits of the Calcutta High Court in the United Kingdom
Of such persons appointed since 1894, a list of those whose names were still on the English Law List of 1938 was on 1st January, 1939 as follows:-
In England : in London
|1.||Henry Leslie Geare||2, Gray’s Inn Square, London W.C. 1 and Hampstead||1895|
|2.||John Zachary Macaulay Hamilton||9, Clifford St., New Bond St., London, W. 1||1897|
|3.||Nathaniel Arthur Heywood||222, Strand, London, W.C. 2||1900|
|4.||Robert Chancellor Nesbitt||5, Bishopsgate London, L.C. 2||1920|
|5.||Harry Alfred Brady||159, Nottin Hill Gate, London, W. 11||1908|
|6.||George Hamilton||46 & 47, London Wall London, E.C. 5||1911|
|7.||John Reginald Quekett Bartlett||26 & 27, Bush Lane, CanNon St., London, E.C. 4||1912|
|8.||Percy Edwin Wolter||28, Great James St., Bedford Row, London, W.C. 1 and Amersham||1914|
|9.||Athro Charles Knight, J. P.||33, Wallbrook, London E.C. 4||1915|
|10.||George Frank Dalrymple
|Basildon House, 7/11 Moorgate
London, E.C. 2
|11.||Sir Alfred Baker, J. P.||LenNox House, Norfolk St., London||1921|
|12.||Aviet William Satoor Abid Evans||141, Moorgate, London E.C. 2||1922|
|13.||Charles Gordon Bonser||83, CanNon St., London E.C. 4 and Golden Green||1923|
|14.||Frederick Henry Eggar||Basildan House, 7/11, Moorgate London, E.C. 2||1925|
|15.||Henry Patrick Tabor Lattey||119, Bishopsgate, London, E.C. 2||1925|
|16.||Eedmund Giffard Oliver||7 & 8, Great Winchester St., London||1925|
|17.||Arthur John bunter||54, Victoria St., West-Minister, S.W. 1||1931|
|18.||Joel Themans Goldsmith||95, CanNon St., London, E.C. 4||1931|
|19.||Sir Robert William Layard Dunlop||4, Serjeants Inn, Fleet St., London, E.C. 4||1932|
|20.||Gilbert William Frederick-Dold||502, Bank Chmbers, 329 High 1935 Holborn, London||1935|
|21.||Cedric Braby||Dacre House, 5, Arundel Street, Strand. Londan||1935|
|In England : In the Country|
|1.||Thomas Finsbury Wakely||Finsbury Chambers, 9A, Lichfield Astom Cross, Birmingham, England||1894|
|2.||Frederick Henry Gardner Tyndall||95, Colmore Row, Birmingham, England||1909|
|3.||Shirley Samuel Hodson||High Street, Heathfield in the Country of Sussex, England||1938|
A list of persons who had been appointed since 1894 in Scotland, Ireland, Wales and other parts of the world was on 1st January, 1939, as follows:
|1.||Arthur Leahy||29, Queen Street, Edinburg||1894|
|2.||Arthur Hile Dickson||137, George Street, Edinburgh||1896|
|3.||Stuart Douglas Elliot||40, Princes Street, Edinburgh||1896|
|4.||Thomas Stodard Whyte Smith||45, Queen Street, Edinburtgh||1909|
|5.||Robert White||45, Frederick St., Edinburgh||1921|
|6.||David Urquhart Dickie||173, St., Vincent St., Glasgow||1925|
|1.||John Bedford Russell Stritch||8, Eustace Street, Dublin||1898|
|1.||Harold “Edmond Petherick||9-12, Melbourne Chambers at 418, Chancery Lane, Melbourne Victoria||1894|
|2.||Edwin James Corr||Statbridge Chambers, Corner of Chancery Lane and Bank Place, Melbourne, Victoria||1894|
|3.||Frank Osborne||2, O’Connell St., Sydney, N.S.W.||1896|
|4.||Joseph Fitzgerald||108, Queen St., Melbourne, Victoria||1896|
|5.||Alexander John Mclachlan||18-22, Eagle Chambers, Pine Street Adelaide, South Australia||1897|
|6.||Ernest Wilberforce Shain||Solicitor in the Colony of Victoria
Practising at Sale,Gippsland in Victoria
|7.||Joseph Woolf||43, Market St., Melbourne, Victoria||1898|
|8.||W.J. Vandenbergh||31, 32 The Exchange (First floor) Pirie St., Adelaide, South Australia||1900|
|9.||Charles Mortimer Muir head||Pirie Street, Adelaide, South Australia||1901|
|10.||Earnest Wilberforce Shain||Premier Buildings, 229, Collins St. Melbourne, Victoria||1902|
|11.||Francis George Clark||Exchange Corner, 63, Pitt St., Sydney, N.S.W.||1906|
|12.||John Daniel Kirby||Stone Bldgs., Macquarie Street Hobart, Tasmania||1908|
|13.||William Dubrelli Weston||Launceston in the State of Tasmania Commonwealth of Australia||1915|
|14.||Ernest Albert Laurence||Bank of New Zealand Chambers, George & Wynyard Streets,||1917|
|15.||Thomas John Ley||Marlborough Chambers,
2, O’Connell St., Sydney, N.S.W
|16.||Robert Noel Anthony Mawly||19, O’Connell Street, Sydney, N.S.W.||1928|
|17.||Leonard Newman Poole||16, Barrack St., Sydney, N.S.W.||1936|
In New Zealand
|1.||John Huzlitt Upham||148, Worcester St., Christ Church N.Z.||1906|
|2.||Eric Glendinning Cowell||109, Queen St., Auckland, C.1.N.Z.||1936|
List of Prescribed Chamber Matters
The following is a list of matters and Applications, other than those set out in Chapter VI, r. 11, prescribed by the Rules to be dealt with or made in Chambers. Those which canNot be taken by the Registrar or Master and must be dealt with by a Judge are marked with an asterisk.[See Chapter VI, rule 12 as to power of the Registrar or Master in Chambers. By sub-clause(a) of that Rule the Registrar or Master canNot take contested applications except with consent.]*1. Application in matters of Attorneys and Articled Clerks. Ch. II, rule 54.2. ” for change of attorney. Ch. II, rule 66.*3. ” to withdraw from the conduct of suit, etc. Ch. II, rule 67.*4. ” as to search, copy or inspection refused or granted by the Registrar. Ch. IV, rules 9 and 10.*5. ” for production of documents elsewhere than in the High Court. Ch. IV rule 16.*6. ” for appointment of Special Translator. Ch. IV, rule 25.*7. ” for compulsory lodgement of documents for translation. Ch. IV, rule 35.*8. ” to enforce payment of costs under a direction of the Registrar or Master. Ch. VI, rule 22.9. ” for fresh summons. Ch. VIII, rule 9.*10. ” for appearance after suit has been set down in the [warning list] and before the hearing. Ch. VIII. rule 19.11. ” for substituted service of summons. Ch. VIII, rule 23.12. ” to transfer suit to Peremptory List of undefended suits. Ch. IX, rule 3.13. ” to have suits heard exparte against defendant in default. Ch. IX, rule 4.14. Application to compel plaintiff to file Written Statement. Ch. IX, rule 5.15. ” [N.B.-The Application here mentioned in the 3rd edn. (of 1930) was one under a Former rule 6 of Chapter IX, for the filing of a voluntary statement or statement containing particulars of set-off. That rule having been Now repealed, No such application lies thereunder.]*16. ” that a suit Not admitted as a Commercial suit may be so marked. Ch. X, rule 4.*17. ” for direction to treat liquidated claim or Commercial suit as ordinary suit. Ch. X, rule 5.18. ” Application that a suit to be entered in the Prospective List be Not placed at the bottom of such List. Ch. X, rule 7, para. 3.19. ” to remove suit from Prospective List (to be made to the Registrar). Ch. X, rule 8.*20. /I to replace a suit in the Prospective List without requisition (before Court or Judge). Ch. X, rule 12.21. ” to set down suit for consent decree. Ch. X, rrule 25.*22. ” that a stayed suit be set down in the Peremptory List before the prescribed time. Ch. X, rule 31.*23. Disposal of suits for want of prosecution. Ch. X, rule 35.24. ” Application for interrogatories. Ch. XI, rule 1.25. ” If for directions in Commercial cases. Ch. XII, rules 2B and 2D.26. ” for leave to sue, etc. as a pauper. Ch. XII, rule 10.27. Notice for investigation of pauperism. Ch. XII, rule 11.28. Application for leave to compromise or discontinue pauper suit or proceeding (before Court or Judge). Ch. XII, rule 16.*29. Disposal of matters on originating summons. Ch. XIII.30. Application for summary judgment. Ch. XIIIA, rule 4.*31. Application for striking out scandalous matters from affidavit.Ch. XV, rule 13.*32. Making of consent decrees. Ch. XVI, rule 7.33. Notices under section 145 and under order XXI, rules 2,34(2) and 37 of the Code (returnable before the Judge), Those under order XXI, rules 16 and 22 of the Code (returnable before the Registrar or Master). Ch. XVII, rule 11.*34. Application to extend returnable date of Warrants (in case of arrest). Ch. XVII, rule 18.*35. ” for Receiver in execution of decree. Ch. XVII, rule 27.36. ” for sale in execution, Ch. XVII, rule 29.*37. Application for payment in execution. Ch. XVII, rule 37.*38. ” for rateable distribution. Ch. XVII, rule 38.*39. Disposal of application for execution Not proceeded with for 12 months. Ch. XVII, rule 43.*40. Garnishee Notice (returnable before the Judge). Ch. XVIII, rule 1.*41. Enquiry as to unsoundness of mind of persons Not so adjudged. Ch. XIX, rule 3.*42. Passing of Receiver’s or Manager’s accounts, etc. (by Court or Judge). Ch. XXI. rules 13 to 20.*43. Application for the issue of a commission. Ch. XXII, rule 1.44. ” under section 12 of the Indian Arbitration Act. Ch. XXIII, rule 5.*45. ” for Court’s opinion on special case (Arbitration Act). Ch. XXIII, rules 5 and 11.*46. ” for directions in case of doubt as to construction of money decrees and orders (to Court or Judge). Ch. XXIV, rule 7.*47. ” that office copy of order directing reference may be received in the Account Department after time. Ch. XXVI, rule 5.*48. ” If that suit be dismissed, etc., for want of prosecution of a Reference. Ch. XXVI, rule 8.*49. ” for postponement of Reference under Ch. XXVI, rule 14(a) (to Court or Judge).*50. ” for recall of Reference (to Court or Judge). Ch. XXVI, rule 15.*51. ” to enforce directions of an officer. Ch. XXVI, rule 23.*52. ” for order to enforce directions of an officer, as to payment of costs or fees in a Reference. Ch. XXVI, rule 29.*53. ” Hearing of application against Officer’s order excluding Managing or Articled Clerk from appearing and acting in a Reference. Ch. XXVI, rule 30.*54. ” Application for an order requiring Officer to report specially. Ch. XXVI, rule 51.*55. ” for further directions where Reference is struck out. Ch. XXVI, rule 55.*56. ” for special leave to file claims after time fixed in Administration Suits. Ch. XXVI, rule 76.*57. ” Application for further time to give Notice to discharge or vary a certificate or report. Ch. XXVI, rule 89.*58. ” as to carriage of proceedings relating to Registrar’s Sale (to Court or Judge). Ch. XXVII, rule 4.*59. ” to confirm acceptance by Registrar of bid below reserved price. Ch. XXVII, rule 21, 29.*60. ” by purchaser for confirmation of Certificate of result of sale before effluxion of time. Ch. XXVII. rule 32.*61. ” to compel delivery of abstract. Ch. XXVII, rule 33.*62. ” for reference as to title. Ch. XXVII. rule 35,*63. ” by purchaser to pay balance of purchase money into Court. Ch. XXVII, rule 38.*64. ” against defaulting purchaser. Ch. XXVII, rule 39.*65. ” regarding disposal of purchase money paid into Court. Ch. XXVII, rule 42.*66. ” for certificate of sale. Ch. XXVII, rule 45.*67. ” Application for the return to the purchaser of Transfer sent for approval. Ch. XXVII, rule 48.*68. ” to procure execution of Transfer by Registrar. Ch. XXVII, rule 51.*69. ” for leave to bid at Registrar’s Sale.Ch. XXVII, rule 54.*70. ” to confirm certificate of result of Sale where party to the suit is accepted as the purchaser without leave, to bid. Ch. XXVII, rule 56.*71. ” for substitution of name as purchaser. Ch. XXVII, rule 58.*72. ” for appointment of guardian under Act VIII of 1890. Ch. XXX, rules 2 and 7.*73. ” for the discharge or removal of a guardian. Ch. XXX, rule 12.74. ” to inspect and take copies of accounts of minor’s guardian, Ch. XXX, rule 14.*75. Presentation and hearing of applications and proceedings in company matters, (See Rule 3 as to power to refer to Court.)*76. ” Application to enlarge time in appeal matters when the Appellate Court is Not sitting. Ch. XXXI, rule 29(a).77. ” to appeal as a pauper (to be presented to the Registrar). Ch. XXXI, rule 31.*78. ” for transmission of original documents to Supreme Court. Ch. XXXIIIA, rule 20.*79. ” to discharge caveat for Not filing affidavit in support thereof. Ch. XXXV, rule 27.*80. ” that testamentary proceedings be numbered as a suit. Ch. XXXV, rule 28.81. ” in Divorce, Ch. XXXV A, rules 11, * 12, 14, 15, 17 to 20, *21, 23, 28, 31, *33, *34, *39, 42 and 45.*82. ” to tax bill returned by the Taxing Officer. Ch. XXXVI, rule 28.*83. ” to review Taxing Officer’s taxation. Ch. XXXVI, rule 72.*84. ” to amend clerical errors, etc., in pleadings. Ch. XXXVIII, rule 34.*85. ” for return of exhibit by outsider producing. Ch. XXXVIII, rule 41.*86. ” for order to prevent return of documents in ordinary course. Ch. XXXVIII, rule 42.*87. Applications for enlargement or abridgment of time. Ch. XXXVIII, rule 46.*88. ” for order against client for payment of taxed costs. Ch. XXXVIII, rule 48.*89. for leave to attorney or Sheriff to be surety. Ch. XXXVIII, rule 53.*90. to summon assessors. Ch. XXXI, rule 4.
No. 1236J.-1st April 1939. – In exercise of the powers conferred by section 544 of the Code of Criminal Procedure, 1898 (Act V of 1898), and in supersession of all previous rules and orders on the subject, the GoverNor is pleased to make the following rules regarding the payment of the reasonable expenses of complainants and witnesses attending for the purpose of any inquiry, trial or other proceeding before the High Court on the Original Criminal Side or the Courts of Presidency Magistrates in Calcutta, under the said Code, namely.