CHAPTER II

THE RISE OF THE MAGISTRACY

1800-1855

As has been shown in the preceding chapter, the importance of the office of Superintendent of Police had been considerably enhanced by the year 1809. Excluding the control of markets and roads, which was taken from him in that year, the Superintendent had executive control of all police arrangements in the Island, exercised all the duties of a High Constable, an Alderman and a Justice of the Peace, was Secretary of the Committee of Buildings, a member of the Town Committee, and a member of the Buildings Committee of H.M.’s Naval Offices in Bombay. He had been appointed a Justice of the Peace at his own request, on the grounds that he would thereby be enabled to carry out his police work more effectively. His deputy at Mahim was also appointed a Justice of the Peace on the publication of Act XLVIII, Geo. III. of 1808.

The year 1809 marks another crisis in the history of Bombay’s police administration, to which several factors may be held to have contributed. In the first place crime was still rampant and defied all attempts to reduce it. Bodies of armed men continued to enter the Island, as for example in 1806 and 1807, and to terrify, molest and loot the residents; and though these gangs remained for some little time within the Superintendent’s jurisdiction, they were never apprehended by the police.[31] In his report of November 15, 1810, Warden refers also to an attack by “Cossids”, _i.e._ _Kasids_ or letter-carriers, who must have been induced to leave for the moment their ordinary duties as postal-runners and messengers by the apparent immunity from arrest and punishment enjoyed by the bands of regular thieves and free-booters. In consequence of the general lawlessness traffic in stolen goods was at this date a most lucrative profession, and obliged the Justices in 1797 to nominate individual goldsmiths and _shroffs_ as public pawnbrokers for a term of five years, on condition that they gave security for good conduct and furnished the police regularly with returns of valuable goods sold or purchased by them.[32] Another source of annoyance to the authorities was the constant desertion of sailors from the vessels of the Royal Navy and of the East India Company. These men were rarely arrested and the police appeared unable to discover their haunts. The peons, _i.e._ native constables were declared to be seldom on duty, except when they expected the Superintendent to pass, and to spend their time generally in gambling and other vices. In brief, the police force was so inefficient and crime was so widespread and uncontrolled that public opinion demanded urgent reform.

In the second place, the old system whereby the Governor and his Council constituted the Court of Oyer and Terminer and Gaol Delivery disappeared on the establishment in 1798 of a Recorder’s Court. The powers of the Justices, who were authorized to hold Sessions of the Peace, remained unimpaired, and nine of them, exclusive of the Members of Government, were nominated for the Town and Island. It was inevitable that the constitution of a competent judicial tribunal, presided over by a trained lawyer, should, apart from other causes, lead to a general stock-taking of the judicial administration of Bombay, and incidentally should direct increased attention to the subject of the powers vested in the Police and the source whence they drew their authority.

The powers of the Superintendent of Police at this epoch were very wide. First, he had power to convict offenders summarily and punish them at the police office. This procedure, in the opinion of the Recorder, Sir James Mackintosh (1803-11), was quite illegal, inasmuch as the punishments were inflicted under rules, which from 1753 to 1807 were not confirmed by the Court of Directors and had therefore no validity. The rules made between 1807 and 1811 were likewise declared by the same authority to be invalid, as they had not been registered in the court of judicature. On other grounds also the police rules authorizing this procedure were _ultra vires_. Secondly, the Superintendent inflicted the punishment of banishment and condemned offenders to hard labour in chains on public works. Between February 28, 1808, and January 31, 1809, he (_i.e._ Mr. Halliday) banished 217 persons from Bombay, and condemned 64 persons to hard labour in the docks. During the three years, 1807-1809, about 200 offenders were thus condemned to work in chains. On the other hand, the Superintendent frequently liberated prisoners before the expiry of their sentence, and in this way released 26 persons on December 20, 1809, without assigning any reason. He condemned persons also to flogging. He kept _no_ record of his cases. “He may arrest 40 men in the morning”, wrote Sir James Mackintosh, “he may try, convict and condemn them in the forenoon; and he may close the day by exercising the Royal prerogative of pardon towards them all.” It is hardly surprising that the mind of the lawyer revolted against the system, and that in his indignation he characterized the powers of the Superintendent as “a precipitate, clandestine and arbitrary jurisdiction.”[33]

In the third place, the powers of the Governor-in-Council to enact police regulations for Bombay were defined anew and enlarged by Act XLVII, Geo. III. of 1808, under the provisions of which the Government was empowered to nominate 16 persons, exclusive of the members of the Governor’s Council, to act as Justices of the Peace. The promulgation of this Act, which was received in Bombay in 1808, rendered necessary a thorough revision of the conditions and circumstances of police control.

In consequence, therefore, of the prevalence of crime and the notorious inefficiency and corruption of the Police, the hostility of the new Recorder’s Court to the existing system of administration, and the need of a new enactment under Act XLVII, the Bombay Government appointed a committee in 1809 to review the whole position and make suggestions for further reform. The President of the committee was Mr. F. Warden, Chief Secretary to Government, who eventually submitted proposals in a letter dated November 15, 1810. The urgent need of reform was emphasized by the fact that the Superintendent of Police, Mr. Charles Briscoe, who had succeeded Mr. Halliday in 1809, was tried at the Sessions of November, 1810, for corruption, as Tod had been in 1790, and that complaints against the tyranny and inefficiency of the force were being daily received by the authorities. Sir James Mackintosh was only expressing public opinion when in 1811 he recommended Government “in their wisdom and justice to abolish even the name of Superintendent of Police, and to efface every vestige of an office of which no enlightened friend to the honour of the British name can recollect the existence without pain.”

Warden’s proposals were briefly the following. He advocated the adaptation to Bombay of Colquhoun’s system for improving the police of London, and suggested the appointment on fixed salaries of two executive magistrates for the criminal branch of the Police, to be selected from among the Company’s servants or British subjects—“one for the Town of Bombay, whose jurisdiction shall extend to the Engineer’s limits and to Colaba, and to offences committed in the harbour of Bombay, with a suitable establishment; and a second for the division without the garrison, including the district of Mahim, with a suitable establishment.” Both these magistrates were to have executive and judicial functions, and were also to perform “municipal duties”.[34] The active functions of the police were to be performed by a Deputy, while “the control, influence, and policy” were to be centred in a Superintendent-General of Police, aided by the two magistrates. The latter officer was to be responsible for the recruitment of the Deputy’s subordinates, and the _Mukadams_ (headmen) of each caste were to form part of the police establishment.

Warden dealt at some length with the qualifications and powers which the chief police officer should possess. He proposed that the Superintendent’s power of inflicting corporal punishment should be abolished, and that his duties should extend only to the apprehension, not to the punishment, of offenders; to the enforcement of regulations for law and order; to the superintendence of the scavenger’s and road-repairing departments; to watching “the motley group of characters that infest this populous island;” and to the vigilant supervision of houses maintained for improper and illegal purposes. “He should be the arbitrator of disputes between the natives, arising out of their religious prejudices. He should have authority over the Harbour, and should be in charge of convicts subjected to hard labour in the Docks, and those sent down to Bombay under sentence of transportation. He should not be the whole day closeted in his chamber, but abroad and active in the discharge of his duty; he should now and then appear where least expected. The power and vital influence of the office, and not its name only, should be known and felt. He ought to number among his acquaintances every rogue in the place and know all their haunts and movements. A character of this description is not imaginary, nor difficult of formation. We have heard of a Sartine and a Fouché; a Colquhoun exists; and I am informed that the character of Mr. Blaqueire at Calcutta, as a Magistrate, is equally efficient.” Warden, indeed, demanded a kind of “admirable Crichton,”—strictly honest, yet the boon-companion of every rascal in Bombay, keeping abreast of his office-work by day and perambulating the more dangerous haunts of the local criminals by night. It is only on rare occasions that a man of such varied abilities and energy is forthcoming: and nearly half a century was destined to elapse before Bombay found a Police Superintendent who more than fulfilled the high standard recommended by the Chief Secretary in 1810.

The upshot of the Police Committee’s enquiry and of the report of its President was the publication of Rule, Ordinance and Regulation I of 1812, which was drafted by Sir James Mackintosh in 1811, and formed the basis of the police administration of Bombay until 1856. Under this Regulation, three Justices of the Peace were appointed Magistrates of Police with the following respective areas of jurisdiction:—

(_a_) The Senior Magistrate, for the Fort and Harbour.

(_b_) The Second Magistrate, for the area between the Fort Walls and a line drawn from the northern boundary of Mazagon to Breach Candy.

(_c_) The Third Magistrate, with his office at Mahim, for all the rest of the Island.[35]

Included in the official staff of these three magistrates were:—

a Purvoe (_i.e._ Prabhu clerk) on Rs. 50 per month a Cauzee (Kazi) ” ” 8 ” ” a Bhut (Bhat, Brahman) ” ” 8 ” ” a Jew Cauzee (Rabbi) ” ” 12 ” ” an Andaroo (Parsi Mobed) ” ” 6 ” ” Two Constables each ” ” 9 ” ” One Havildar ” ” 8 ” ” Four Peons each ” ” 6 ” ”

The executive head of the Police force was a Deputy of Police and High Constable on a salary of Rs. 500 a month, while the general control and deliberative powers were vested in a Superintendent-General of Police. All appointments of individuals to the subordinate ranks of the force were made by the Magistrates of Police, who with the Superintendent-General met regularly as a Bench to consider all matters appertaining to the police administration of Bombay. European constables were appointed by the Justices at Quarter Sessions, and the _Mukadams_ or headmen of each caste formed an integral feature of the police establishment.

The strength and cost of the force in 1812 were as follows:—

1 Deputy of Police and Head Constable Rs. 500 per month 2 European Assistants (at Rs. 100 each) Rs. 200 ” ” 3 Purvoes (Prabhus, clerks) Rs. 110 ” ” 1 Inspector of Markets Rs. 80 ” ” 2 Overseers of Roads (respectable natives at 50 each) Rs. 100 ” ” 12 Havaldars (at Rs. 8 each) Rs. 96 ” ” 8 Naiks (at Rs. 7 each) Rs. 56 ” ” 6 European Constables Rs. 365 ” ” 50 Peons (at Rs. 6 each) Rs. 300 ” ” 1 Battaki man Rs. 6 ” ” 1 Havaldar and 12 Peons for the Mahim patrol Rs. 80 ” ”

_Harbour Police._

7 Boats _i.e._ 49 men Rs. 300 ” ” 1 Purvoe Rs. 50 ” ” 4 Peons (at Rs. 6 each) Rs. 24 ” ” Contingencies Rs. 74 ” ”

Thus, including the Deputy of Police, the land force comprised 10 Europeans, one of whom was in charge of the markets, and 86 Indians, of whom two were inspectors of roads. The clerical staff consisted of three Prabhus. The water-police consisted of 53 Indians and one clerk. The cost of the force, including the water-police, amounted to Rs. 27,204 a year, to which had to be added Rs. 888 for contingencies, Rs. 1425 for the clothing of havaldars and peons, and Rs. 2000 for stationery.[36]

The inclusion in the magisterial establishment of “a Cauzee” etc. requires brief comment. Down to 1790 the administration of criminal justice in India was largely in the hands of Indian judges and officials of various denominations, though under European supervision in various forms; and even after that date, when the native judiciary had ceased to exist except in quite subordinate positions, the law that was administered in criminal cases was in substance Muhammadan law, and a Kazi and a Mufti were retained in the provincial courts of appeal and circuit as the exponents of Muhammadan law and the deliverers of a formal _fatwa_. The term Kazi on this account remained in formal existence till the abolition of the Sadr Courts in 1862.[37] The object of associating Kazis with the Bombay magistrates of police at the opening of the nineteenth century was doubtless to ensure that in all cases brought before them, involving questions of the law, customs and traditions of the chief communities and sects inhabiting the Island, the magistrates should have the advantage of consulting those who were able to interpret and give a ruling on such matters. The Kazi proper was the authority on all matters relating to the Muhammadan community; the “Jew Cauzee” on matters relating to the Bene-Israel, who from 1760 to the middle of the nineteenth century contributed an important element to the Company’s military forces;[38] the Bhat presumably gave advice on subjects affecting Hindus of the lower classes; while the “Andaroo” (_i.e._ Andhiyaru, a Parsi priest) was required in disputes and cases involving Parsis, whose customs in respect of marriage, divorce and inheritance had not at this date been codified and given the force of law.

The Regulation of 1812 effected little or no improvement in the state of the public security. Gangs of criminals burned ships in Bombay waters to defraud the insurance-companies; robberies by armed gangs occurred frequently in all parts of the Island;[39] and every householder of consequence was compelled to employ private watchmen, the fore-runners of the modern Ramosi and Bhaya, who were often in collusion with the bad characters of the more disreputable quarters of the Town.[40] Even Colaba, which contained few dwellings, was described in 1827 as the resort of thieves.[41] The executive head of the force at this date was Mr. Richard Goodwin, who succeeded the unfortunate Briscoe in 1811 and served until 1816, when apparently he was appointed Senior Magistrate of Police, with Mr. W. Erskine as his Junior.

The proceedings of both the magistrates and the police were regarded with a jaundiced eye by the Recorder’s Court, and Sir Edward West, who filled the appointment, first of Recorder and then of Chief Justice, from 1822 to 1828, animadverted severely in 1825 upon the illegalities perpetrated by the magisterial courts, presided over at that date by Messrs. J. Snow and W. Erskine[42]. His successor in the Supreme Court,[43] Sir J. P. Grant, passed equally severe strictures upon the police administration at the opening of the Quarter Sessions in 1828.

“The calendar is a heavy one. Several of the crimes betoken a contempt of public justice almost incredible and a state of morals inconsistent with any degree of public prosperity. Criminals have not only escaped, but seem never to have been placed in jeopardy. The result is a general alarm among native inhabitants. We are told that you are living under the laws of England. The only answer is that it is impossible. What has been administered till within a few years back has not been the law of England, nor has it been administered in the spirit of the law of England; else it would have been felt in the ready and active support the people would have given to the law and its officers, and in the confidence people would have reposed in its efficacy for their protection.”[44]

The punishments inflicted at this date were on the whole almost as barbarous as those in vogue in earlier days. In 1799, for example, we read of a Borah, Ismail Sheikh, being hanged for theft: in 1804 a woman was sentenced to five years’ imprisonment for perjury, during which period she was to stand once a year, on the first day of the October Sessions, in the pillory in front of the Court House (afterwards the Great Western Hotel), with labels on her breast and back describing her crime: and in the same year one Harjivan was sentenced to be executed and hung in chains, presumably on Cross Island (_Chinal Tekri_), where the bodies of malefactors were usually exposed at this epoch. One James Pennico, who was convicted of theft in 1804, escaped lightly with three months’ imprisonment and a public whipping at the cart’s tail from Apollo Gate to Bazaar Gate; in 1806 a man who stole a watch was sentenced to two years’ labour in the Bombay Docks.[45] The public pillory and flogging were punishments constantly inflicted during the early years of the nineteenth century. The pillory, which was in charge of the Deputy of Police, was located on the Esplanade in the neighbourhood of the site now occupied by the Municipal Offices. The last instance of its use occurred in 1834, when two Hindus were fastened in it by sentence of the Supreme Court and were pelted by boys for about an hour with a mixture composed of red earth, cowdung, decayed fruits and bad eggs. At intervals their faces were washed by two low-caste Hindus, and the pelting of filth was then resumed to the sound of a fanfaronade of horns blown by the Bhandaris attached to the Court.[46] Meanwhile the English doctrine of the equality of all men before the law was gradually being established, though the earliest instance of a Brahman being executed for a crime of violence did not occur until 1846. The case caused considerable excitement among orthodox Hindus, whose views were based wholly upon the laws of Manu.[47]

The early “thirties” were remarkable for much crime and for a serious public disturbance, the Parsi-Hindu riots, which broke out in July, 1832, in consequence of a Government order for the destruction of pariah-dogs, which at this date infested every part of the Island. Two European constables, stimulated by the reward of eight annas for every dog destroyed, were killing one in the proximity of a house, when they were attacked and severely handled by a mob composed of Parsis and Hindus of several sects. On the following day all the shops in the Town were closed, and a mob of about 300 roughs commenced to intimidate all persons who attempted to carry out their daily business. The bazar was deserted; and the mob forcibly destroyed the provisions intended for the Queen’s Royals, who were on duty in the Castle, and stopped all supplies of food and water for the residents of Colaba and the shipping in the harbour. As the mob continued to gather strength, Mr. de Vitré, the Senior Magistrate of Police, called for assistance from the garrison, which quickly quelled the disturbance.[48]

The Press of this date recorded constant cases of burglary and dacoity. “The utmost anxiety and alarm prevail amongst the inhabitants of this Island, especially those residing in Girgaum, Mazagon, Byculla and the neighbourhood, in consequence of the depredations and daring outrages committed by gangs of robbers armed with swords, pistols and even musquets, who, from the open and fearless manner in which they proceed along the streets, sometimes carrying torches with them, seem to dread neither opposition nor detection, and to defy the police.” It was even said that sepoys of the 4th Regiment of Native Infantry, then stationed in the Island, joined these gangs of marauders, and when two men of the 11th Regiment were arrested on suspicion by a magistrate, their comrades stoned the magistrate’s party. “It would be far better that the Island should be vacated altogether by the sepoy regiments,” said the _Courier_, “than that it should be exposed repeatedly to these excesses.” Fifty men of the Poona Auxiliary Force had to be brought down to aid the police and to patrol the roads at night.[49]

According to Mrs. Postans, the police administration had improved and robberies had become less frequent at the date of her visit, 1838. “The establishment of an efficient police force,” she writes, “is one of the great modern improvements of the Presidency. Puggees (_Pagis_ _i.e._ professional trackers) are still retained for the protection of property: but the highways and bazaars are now orderly and quiet, and robberies much less frequent.”[50] The authoress admitted, however, that the Esplanade—particularly the portion of it occupied by the tents of military cadets—was the resort of “a clique of dexterous plunderers,” who during the night used to cast long hooks into the tents and so withdraw all the loose articles and personal effects within reach.[51] The prevalence of more serious crime is indicated by her remarks about the Bhandari toddy-drawers:—

“It appears that in many cases of crime brought to the notice of the Bombay magistracy, evidence which has condemned the accused has been elicited from a Bundarrie, often sole witness of the culprit’s guilt. Murderers, availing themselves of the last twilight ray to decoy their victims to the closest depths of the palmy woods and there robbing them of the few gold or silver ornaments they might possess, have little thought of the watchful toddy-drawer, in his lofty and shaded eyry.”[52]

That the improvement was not very marked is also proved by the fact that in 1839, the year after Mrs. Postans’ visit, the Bench of Justices increased their contribution to Government for police charges to Rs. 10,000, the additional cost being declared necessary owing to the rapid expansion of the occupied urban area, and to the grave inadequacy of the force for coping with crime. So far as watch and ward duties were concerned, the police must have welcomed the first lighting of the streets with oil-lamps in 1843. Ten years later there were said to be 50 lamps in existence, which were lighted from dusk to midnight, and the number continued to increase until October, 1865, when the first gas-lamps were lighted in the Esplanade and Bhendy Bazar. On the other hand drunkenness was a fruitful source of crime, and the number of country liquor-shops was practically unlimited. “On a moderate computation” wrote Mrs. Postans “every sixth shop advertises the sale of toddy.” With such facilities for intoxication, crime was scarcely likely to decrease.

But other and deeper reasons existed for the unsatisfactory state of the public peace and security. Throughout the whole of the period from 1800 to 1850, and in a milder form till the establishment of the High Court in 1861, there was constant friction, occasionally of an acute character, between the Supreme Court and the Company’s government and officials. Moreover, the original intention of the Crown that the Supreme Court should act as a salutary check upon the Company’s administration was frustrated by several periods of interregnum between 1828 and 1855, the Court being represented frequently by only one Judge and on one occasion being entirely closed owing to the absence of judges. This antagonism between the highest judicial tribunal and the executive authority could not fail to react unfavourably on the subordinate machinery of the administration, and coupled with inadequacy of numbers, insufficiency of pay, and a general lack of integrity in the Police force itself, may be held to have been largely responsible for the comparative freedom enjoyed by wrong-doers and their manifest contempt for authority.

Contemporary records indicate that the Police Office at this period (1800-1850) was located in the Fort; the court of the Senior Magistrate of Police was housed in a building in Forbes Street, and the court of the Second Magistrate in a house in Mazagon. The powers of both Magistrates were limited, and all cases involving sentences of more than six months’ imprisonment, or affecting property valued at more than Rs. 50, had to be sent to the Court of Petty Sessions or committed to the Recorder’s, subsequently the Supreme Court. The Court of Petty Sessions was composed of the two Magistrates of Police and a Justice of the Peace (the Superintendent-General of Sir J. Mackintosh’s draft Regulation), and sat every Monday morning at 10 a.m. at the Police Office in the Fort. The constitution of this Court was afterwards amended by Rule, Ordinance and Regulation 1 of 1834, which, though not registered in the Supreme Court as required by Act XLVII, Geo. III, was subsequently legalized by India