Hindu Law and Custom (Recht und Sitte) c10.53

c10.53

§:49. Civil and criminal procedure. Law-suits (vyavahāra) are divided into civil and criminal cases (dhana and himsāsamudbhava) which are treated in different manners in important cases. Thus in the cases of adultery, theft, real and verbal injuries, violence and other grave crimes everybody may bear witness (Gaut. 13, 9; Nār. 1, 189 etc.), while otherwise the qualifications of the witnesses shall be subjected to a close scrutiny. A similar exception in favour of the grave criminal cases is made on the occasion of ordeals, which otherwise would be resorted to by the accused only if the other party is ready to accept the punishment in case of defeat (§ 52). In criminal cases the answer of the accused has to be given immediately while otherwise pretty long periods are allowed him (Gaut. 13, 28—30; Y. 2, 12; Nār. I, 1,44 f.). On the other hand, he can bring a counter suit e.g. for the compensation of an insult with another insult (Y. 2, 9). The accused may be represented at the court by another person but it is not allowed in criminal cases (Kāty. 2, 11—13).¹ In the case of the 10 principal crimes and 72 other crimes the king may interfere, even though there is none to complain (§ 40), while ordinarily the procedure of accusation is followed ². The cases in which anybody may be convicted merely on suspicion even though there is no witness to prove it, are all criminal cases; thus he who is seen with a firebrand will be known as an incendiary; he who is seen with a weapon, as a murderer; he who is seen with the wife of another, as the adulterer; he who is seen with an axe in his hand will be known as the destroyer of forests (Nār. 1, 172—176). The lower competence of caste-assemblies corporations, families, arbitrators and similar others had probably nothing to do with important criminal cases.