Guest Post: Settling the Split — The Argument for Mandatory Rehearing under Section 392

(This is a guest post by Atulit Subramanian)

This piece concerns the debate surrounding Section 392 of the Code of Criminal Procedure, 1973 (“CrPC, 1973”) [429 of the Code of Criminal Procedure, 1898 (“CrPC, 1898”) and 433 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”)], which was most recently examined by the Supreme Court in Rakesh Kumar Gupta v. State of UP (“Rakesh Gupta”). This provision outlines the procedure to be followed in case of an equally split disagreement between judges of a division bench, wherein a third referee judge must be consulted to resolve the split and deliver the judgement.

In Rakesh Gupta, the Court framed three questions for consideration. First, whether the referee judge is empowered to deliver a judgement disagreeing with opinions of both other judges; Second, whether a referee judge is only empowered to deliberate on the points of disagreement between the other judges; and Third, whether the referee judge must compulsorily refer the matter to a larger bench in case of a disagreement with a unanimous finding of both judges (¶ 8). These questions came up in light of reversal of a concurrent finding of both judges regarding acquittal of an appellant by a referee judge, despite the disagreement having to do with another appellant altogether, in a composite appeal filed (¶ 3).

The Court only ruled on the first question, maintaining that a referee judge is empowered to do so, while the remaining two questions were referred to a larger bench (¶ 9, ¶ 41). However, strong opinions were presented as to the correctness of the ruling in Sajjan Singh v. State of M.P (“Sajjan Singh”), with the Court hinting favourably towards curtailing the power of the referee judge to only the points of disagreement.

This piece, however, argues that while the referee judge must have the power to examine any question within ambit of the appeal, any disagreement with concurrent findings of other judges must result in a mandatory re-hearing before a larger bench. It proceeds in three parts. First, the argument that the textual difference between Section 429 of CrPC, 1898 and 392 of CrPC, 1973 acts in favour of curtailing the referee judge’s ambit is rebutted. Second, the unanswered question of a potential Article 14 (“Art.14”) violation is dealt with. Third, the method to interpret the statute is established.

The Case v. The Appeal

Under 429 CrPC, 1898, the text of the provision used the term “the case” and not “the appeal”. However, this was subsequently changed to “the appeal” in 392 of CrPC, 1973, which remains in 433 of the BNSS. In Rakesh Gupta, the Court argued that the non-examination of this shift in Sajjan Singh, the leading authority to support the unfettered discretion of the referee judge, rendered it plausibly incorrect (¶ 34). In doing so, the Court aimed to establish that the usage of the term “the appeal” following “an appeal” is anaphoric, and therefore must be read to confine the discretion of the referee judge to the specific appeal in disagreement only (¶ 32). 

However, this interpretation is faulty as legislative history directly contradicts the proposition that this textual shift was meant to fetter the discretion of the referee judge. The 41st Report of the Law Commission of India (“Report”) dealt with this question. The finally proposed amendment to the provision is identical to the text of 392 of CrPC, 1973. It contained two changes - amending “the case” to “the appeal”, and introducing the proviso which allows for re-hearing before a larger bench, if any of the original two judges or the referee judge so require (¶ 31.57).

Importantly, the Report considered whether the discretion of the referee judge must be statutorily constrained. They explicitly rejected the addition of an explanation which would explain the term “the case” to mean only points of disagreement (¶ 31.53). Furthermore, the nature of a criminal proceeding where fact finding is not as easily severable as a civil proceeding as between co-appellants was specifically pointed out (¶ 31.54). In conclusion, the Report expressed no wish to statutorily clarify the role of the referee judge, preferring instead to leave it to judicial discretion. The change of the text to “the appeal”, though suggested, was never reasoned out, and as discussed above, most certainly do not act as an indicator of an intention to point in the direction of the construction in Rakesh Gupta.

While Rakesh Gupta rightfully recognised that the right of appeal in a criminal proceeding is individual (¶ 27), this alone does not provide grounds to constrain the referee judge. Therefore, there is neither a statutory nor precedent-based reasoning to directly support this construction —which is in contravention to decades of development. However, as outlined in the third section, the present position is not without its problems, and the proposed solution solves the conundrum without impeding the referee judge unnecessarily.

The Article 14 Question

This part of the piece delves into the concern shown in Rakesh Gupta as to a potential Art.14 violation caused by accepting the current position (¶ 35). While the rationale for the same is the alleged advantage/disadvantage caused by filing a composite appeal as opposed to an individual appeal, the Court declined to go further due to absence of any authoritative decision on the same. It is argued that Art.14 is an improper tool to correctly identify the defect with the current position. First, the role of the State is correctly mapped out, and second, the applicability of Art.14 to the referee judge’s role is examined.

Firstly, the scope of an Art.14 analysis is usually attracted in circumstances when the disparity was created by the State - through legislative classification or executive action. The statute does not explicitly provide for filing joint appeals, although such right has long since been recognised by the Court. The impugned provision applies squarely to all appeals under Chapter XXIX of CrPC, 1973, proving that this is not a true case of legislative classification. Even in matters where parallelly existing procedures were challenged before the Court under Art.14, the decision of which procedure to follow lay in the hands of the State. Restricting the analysis to situations where the appellants themselves file a joint appeal, one cannot truly find State involvement as the choice to do so is entirely the appellants. 

However, in State of Gujarat v. Ramprakash (“Ramprakash”), the right of the State to file a joint appeal against the acquittal of multiple co-accused in a joint trial under 417 of CrPC, 1898 [378 of CrPC, 1973 and 419 of the BNSS] was recognised. This can be characterised as an executive action as the power to choose between individual appeals against each appellant’s acquittal and a singular joint appeal lies with the State. 

Two tests exist to examine whether an action is violative of Art. 14. The twin test established in State of WB v. Anwar Ali Sarkar, and the manifest arbitrariness test established in Shayara Bano v. UOI. The former requires to establish first, an intelligible differentia between the two classes and second, a rational nexus of such classification to the object of the law. The latter requires that any measure undertaken is not capricious, irrational and/or without adequate determining principle.

In Ramprakash, the Court read the right of the State into the statutory provision in the CrPC, 1973 and held that it merely facilitated the cause of justice. Importantly, this right was acknowledged in light of the fact that the initial trial too was joint in nature. Furthermore, the close interrelatedness of facts in a criminal trial with multiple accused has repeatedly been flagged as being distinguishable from the easy severability in a civil trial. In any case, the convicted individuals too possess the same right to file a composite appeal. Therefore, this power can in no way be said to be violative of Art.14 under either test. 

Secondly, challenge to the power of a referee judge to override two concurring judges requires a different approach, distinguished from challenging any discretion granted to the State. In Naresh Mirajkar v. State of Maharashtra, the principle that judicial function is usually insulated from an Art.14 analysis was first laid out. However, in A.R Antulay v. R.S Nayak, the Supreme Court clarified that a judicial order stands within the scope of an Art.14 challenge, although only in limited circumstances. The basis for the same in the case was - altering or conferring jurisdiction with no statutory basis, singling out a person or class of persons for a different procedural treatment, and depriving individuals of fundamental or statutory rights.

Importantly, the scheme of the provision itself clarifies that the judgement is only delivered after the referee judge has presented their view, and the view of the division bench is a mere opinion until this stage. As argued in the preceding section, there exists no basis to curtail the ambit of the referee judge’s enquiry. As a result, the referee judge cannot be said to be acting outside their jurisdiction or power granted by the statute. Furthermore, the right to appeal is not being deprived of in any manner, and therefore, there exists no differential treatment being accorded.

In summation, while there indeed exists a problem with the present application of law, Art.14’s standards cannot be met. The past applications of Art.14 suggest that basing the identification of the current defect on an Art.14 analysis would render its very foundations unnecessarily shaky. In any case, as is demonstrated in the next section, the proposed reading would cure it entirely.

(Correctly) Framing the Problem and Solution

In Tirath Singh v. Bachittar Singh, the ‘golden rule’ of statutory interpretation was formally recognised. It postulates that if the literal interpretation of the statute leads to a presumably unintended  absurdity, injustice, or hardship, it can be constructed in a way which modifies its structure. Therefore, if both an absurdity existing, and its presumable unintendedness can be shown, a legitimate ground to support the proposed reading is created. In this section - first, the elements to trigger the golden rule are demonstrated; and second, the mechanism of the proposed reading is justified.

Firstly, the absurdity caused by the present position of law has already been flagged in Rakesh Gupta (¶ 36). A referee judge possesses the power to override the concurring opinions of the judges of the division bench, even if it does not concern the specific appeal(s) regarding which they disagree. In effect, this means that the acquittal of a single individual by the division bench of an appellate court could be jeopardised - solely on account of the fact that a composite appeal has been filed.  

An unspoken, cardinal rule of the decision making process, visible in Indian jurisprudence, is that the numerical minority opinion can never be the conclusive outcome of a judgement. While the procedure as to criminal appeals is unclear, 98 of the Code of Civil Procedure, 1908 leaves no room for confusion with regard to civil appeals. Whenever the judges of the division bench have no clear majority view as to a question of law, the matter is referred to further judges, and the decision is made per the majority view of all judges hearing that matter. Even in civil suits, the appellants are afforded the protection to ensure that a referee judge cannot override concurrent findings of the original division bench. Therefore, in a criminal trial where the consequences are penal in nature, and facts are closely interrelated, it would be absurd to not recognise a similar protection.

The Report also flags that in 1922, when an amendment was introduced to neutralize this very absurdity, it was rejected by the Select Committee (¶ 31.56). However, the reasoning for doing so was that this circumstance is a very rare occurrence, and therefore, it was unnecessary to engage with it. Crucially, this highlights that the present application was in no way an intended outcome of the provision by the Legislature, else the rationale would have mentioned so. Therefore, both the elements of an existing absurdity, and its presumable unintendedness are satisfied. 

Secondly, State of UP v. Jogendra Singh provides that if the whole purpose of a provision is contradicted by its literal meaning, a permissive proviso can be read as a duty. In the impugned provision, the proviso provides for a re-hearing before a larger bench, if any of the judges so require. As it does not cast any duty, it remains as a discretionary tool to be used. However, as demonstrated in the preceding paragraphs, the application in a composite appeal leads to a wholly unintended, irrational outcome. It results in a circumstance wherein the purpose of resolving the split is exceeded and produces a possibly prejudicial effect on the appellant. Therefore, it is legally defensible to read the proviso as casting a duty on the referee judge to refer the matter to a re-hearing, if they come to a finding in contradiction to concurrent findings by the division bench.

In practicality, this move would resolve every existing concern with the provision. In the Report too, this solution was hinted at favourably (¶ 31.56). A referee judge would no longer be able to single-handedly override unanimous findings by the division bench. At the same time, their power to examine every fact within the ambit of the appeal is not arbitrarily curtailed to the points of disagreement. This would also duly account for the unique nature of a criminal trial, as opposed to a neatly fact-severable civil suit. Therefore, this is perhaps the most legally sound and suitable solution.

Conclusion

The Supreme Court is presented with an opportunity to end a decades-long tussle as to the power and scope of the referee judge, in the context of a composite appeal. It has three choices before it - reaffirm the Sajjan Singh position, curtail the scope of the referee judge’s enquiry to the specific points of disagreement, or mandate a re-hearing before a larger bench in the event of a disagreement with unanimous findings of the division bench.

Reaffirming Sajjan Singh would continue the absurdity wherein the opinion of one judge can override that of two. Meanwhile, the diametrically opposite position necessitates undermining the factual interconnectedness of a criminal trial, and attempts to place reliance on a textual difference erroneously. Both the Report and the bench in Rakesh Gupta seem to hint at the third as the most viable solution, which would both cure the defect, and not curtail the referee judge without a sound reason.

The argument for the proposed reading is premised on understanding the fundamental difference between curtailing the scope of the referee judge’s enquiry, and curtailing the ability to override a concurrent finding of the initial bench. Relying on Art.14 to identify the defect would only premise the reasoning on unsatisfactory grounds. The appropriate mechanism to cure unintended statutory absurdities already exists via Tirath Singh. Therefore, the proposed reading creates a perfect balance between allowing for full enquiry of the facts by the referee judge, and preserving the integrity of the appellate process.

A Sight and Smell Test for Colonial Continuities in Criminal Law

The Bharatiya Nagarik Suraksha Sanhita 2023 reportedly marked a stark and solemn departure from the colonial legacy of criminal laws in India by placing 'Suraksha' (Safety / Security) as paramount. Its not a part of the law's title, but one assumes that the 'safety' being contemplated is that of the ordinary person on the street. The same person for whom the Constitution guarantees a set of fundamental rights, like the right to life and personal liberty. In this formulation, constitutionally guaranteed rights are meant to be serviced and protected by the statute. This kind of synergy is precisely what was missing from the scene for the 74 years for which the Constitution dovetailed with the colonial Criminal Procedure Code(s) which placed executive power above all else.

For lawyers who bothered to pick up the BNSS over the past two years, reading was like an act of revelation, as it confirmed that the formulation I depict above was little more than a well-publicised myth. The lawyers saw that there was not much different about the kind of Suraksha imagined by the BNSS from the colonial regime, as the new law had frankly retained the entire old regime lock, stock and barrel. 

Over the past two months, large-scale protests by citizens demanding accountability from public institutions and officers presented the perfect sight and smell test for ordinary persons to assess the functioning of our new criminal procedure law and its de-colonial drift. The aftermath of these encounters between the State and its citizens has, it would be fair to say, confirmed for the rest of us what lawyers saw two years ago: The BNSS has placed new bells and whistles on what was still the same old trusty law for the police.      

The BNSS is not securing the citizen; a law retaining the entire colonial criminal code was never meant to. The BNSS is securing the baton which is wielded against the citizen. It is securing the regime which presumes citizens to be in breach of peace if they assemble to raise questions for accountability. It is not ensuring security of citizens to walk around the city, but the impunity of those who can accost them on baseless suspicions and demand explanations. It does not further constitutional guarantees of a right to life and personal liberty by holding the State and its officer accountable. Instead, it allows the State to infringe liberty without having to give answers.

It wasn't the race of the ruling class, but this utter imbalance of accountability and power which was the beating colonial heart of the Criminal Procedure Code of 1898. It ensured that in every encounter between police and citizens, the police had a wide berth to act as it pleased, because it placed the State interest as paramount and personal liberty as an incidental fact. This colonial heart continued to beat strongly under the 1973 Code, and now in the latest Suraksha Sanhita of 2023. The Constitution and its recognition of personal freedoms could not change this core of criminal procedure, since its enforcement regime continued to allow police to act first and be held accountable several weeks, months, or years later. A transformative constitution it certainly was, but one which only came into play after the fact.      

Without replacing this colonial heart of darkness at the heart of our criminal procedure, good luck hoping for meaningful or respectful exercise of personal freedom by citizens against a behemoth State machinery. Until then, understand that personal liberty is not guaranteed or secured by the due process of law, rather it remains entirely subject to procedures and formal trappings of laws. It is why a constitutional court will start a conversation about protests not by asking how can a State stop citizens from assembling peaceably without arms, but wants to know whether proper permissions from the State were obtained in the first place. 

If such laws were illegitimate and labelled as black laws under colonial rule, are not the laws and structures which adhere to that same colonial logic equally illegitimate today?

Guest Post: Protected Witnesses under UAPA and the Bilal Mir Judgment

(This is a guest post by Shashank Sinha)

A bench of the Delhi High Court had the opportunity to consider the interpretation and application of Section 44 of the Unlawful Activities (Prevention) Act 1967 in Bilal Mir v. National Investigation Agency, (Crl. M.C. 5129/2025). The outcome is a peculiar judgement which discusses how important it is that even persons accused of offences under special criminal laws such as the UAPA deserve a trial that is fair and an opportunity to challenge evidence against them by confronting and cross examining witnesses, while at the same time legitimizing declaration of witnesses as protected by way of non-speaking and barely reasoned orders. 

Protected Witnesses in the UAPA

Section 44 of the UAPA allows for certain witnesses for the prosecution to be declared ‘protected witnesses’ at the instance of the witness, the state, or the presiding judge. Declaration of a witness as ‘protected witnesses’ results in their personal information being withheld from the accused throughout the proceedings. Obviously, this has significant ramifications for the accused including their right to bring into question the credibility of the witness and to confront and cross examine the witnesses. Confronting an adversarial witness is one of those rights without which one simply cannot call a trial fair in any sense of the word. It also establishes the credibility of the witness itself as a witness who is able to come out of this confrontation without having any major chinks exposed in their narration reaffirms their truthfulness and integrity in the eyes of the court. 

Since this is a provision that quite heavily curtails rights of the accused that would be considered central to what constitutes a fair trial, it would be interpreted in a very strict [Para 448 in Sahai, J’s opinion in Kartar Singh v. State of Punjab, (1994) 3 SCC 569] manner and would require a thorough judicial application of mind with regards to each witness. 

This much and more has been held by the Supreme Court in its judgement in Mohammad Asarudeen v. Union of India (2025 INSC 746). The Supreme Court held that the Special Court under UAPA is required to individually assess the situation of each witness who is sought to be made a protected witness. The Court also held that a judicial finding should be recorded that there is a danger to the life of the witness should their identity be revealed in open court or to the accused persons prior to and during the course of the trial. It is also essential that this finding be not mechanical and shows proper application of mind. Thus, the Court laid down clearly that any order declaring any witness for the prosecution as ‘protected’ under Section 44 UAPA cannot be vague, omnibus and non-speaking given the massive implications such an order has on the right of the accused to bring their character, integrity and their substantive testimony into doubt during the trial. 

Diluting Mohammad Asarudeen and ignoring it altogether

The first part of Bilal Mir correctly discusses the law on protected witnesses under UAPA and states, in slightly more detail, what has been stated in the preceding paragraphs. However, it is in applying this standard where the Court goes wrong. The Court dilutes the standard of judicial application of mind required of a Special Court under UAPA in making such an order. Where Mohammad Asarudeen requires it to reach a specific judicial satisfaction as to there being a danger to the life of the witness before passing an order under Section 44, the Court here reduced the standard to mere ‘probability’ of danger which is a substantially reduced standard. This very holding puts Bilal Mir in the teeth of Supreme Court precedent. 

Secondly, there is also a point where the Court concedes that the Special Court’s order which was passed ex parte and without referring specifically to witnesses who were sought to be made protected witnesses by the prosecution might not be in consonance with the judgement of the Supreme Court in Mohammad Asarudeen (Paras 10 and 79). Yet the High Court’s decision as to the validity of the impugned order does not turn on this. The High Court instead points to the fact that the order was not immediately challenged even when applicants had also filed an application for copies of unredacted statements of the protected witnesses in the wake of the impugned order. Thereafter, the High Court inexplicably reasoned that since applicants did not raise any particular grievance before the Special Court while it was considering the application under Section 44, they must be precluded from challenging the same before the High Court (Para 80). Needless to say, ex parte proceedings are not invitations to dispense with the requirements of judicial application of mind and pass mechanical orders. [State Bank of Patiala v. Vinesh Kumar Bhasin, (2010) 4 SCC 368 - Para 20]. Regardless, even the Court’s assertion that applicants did not challenge either during the Section 44 proceedings or after the order had been passed is not true given that the application for unredacted statements of the protected witnesses was not entertained by the Special Court on the ground that it ‘amounted to a review of its earlier order’. This could very well have been construed as a challenge as the Court itself records. 

Finally, the most peculiar part. The High Court concedes that the Impugned Order did not follow binding Supreme Court precedent. Yet, later on, it tried to justify the validity of the Impugned Order stating that the Special Court had considered the entire chargesheet before passing orders under Section 44. Where this was apparent from the impugned order, and whether consideration of the chargesheet alone is adequate to reach the ‘satisfaction’ that Mohammad Asarudeen demands of the Special Court passing an order declaring a witness as ‘protected’, the Court does not say. 

Conclusion

This might not be the last time that mechanical orders declaring witnesses as ‘protected’ in UAPA prosecutions and binding Supreme Court precedent is ignored. Considering what is at stake, it simply cannot become the norm that Special Courts under the UAPA can pass unreasoned mechanical orders to declare witnesses as ‘protected’ given the consequences for the accused during the trial and the harsh punishments that follow if the state is able to secure a conviction.

Bilal Mir may be cited as an instance of watering down extremely essential safeguards for the accused in prosecutions where the balance is already extremely tilted in favour of the state. However, considering how the Court placed such importance on the failure of the applicants to challenge the order, one can argue that the observations in Para 83 ought not to be treated as its ratio. 

(Thanks to Aadi Behle for his comments and insights).

Guest Post: Per Incuriam and the Appellate Tribunal's Reading of Section 8(3) PMLA

(This is a guest post by Riddhi Alok Puranik)

A May 2026 order of the Appellate Tribunal constituted under the PMLA 2002 (“ATPMLA”), disposing of four appeals in the NSEL investigation, does something I argue that a Tribunal is not permitted to do. Confronted with a Delhi High Court Division Bench judgment going against how the Directorate of Enforcement read the PMLA, the Tribunal neither followed that authority nor distinguished it on the facts. It held the judgment — Directorate of Enforcement v. Rajesh Kumar Agarwal — to be per incuriam and declined to follow it.

The underlying dispute is narrow. Section 17 of the PMLA allows an authorised officer to search and seize or freeze property. Section 20 allows an authorised officer, on fresh recorded reasons, to retain that property for up to 180 days. Section 8(3) allows the Adjudicating Authority (also constituted under the PMLA) to confirm a retention. Rajesh Kumar Agarwal reads these as sequential i.e. without a Section 20 order the retention is void, and there is nothing for section 8(3) to confirm. The Directorate's case, which the Tribunal accepted, is that Section 8(3) carries an independent power to order retention on a Section 17(4) PMLA application, so that Section 20 may be bypassed altogether.

That interpretive question is contested and is now before the Supreme Court. The Tribunal was entitled to think the Delhi High Court wrong about it. What it could not have done, in my respectful submission, was to declare a Division Bench judgment as per incuriam. This is for two independent reasons: the doctrine does not fit a judgment that construed the very provision said to have been overlooked, and a Tribunal subject to a High Court’s superintendence cannot invoke this rule to avoid a judgment it disagrees with. This piece takes both objections in turn, then sets out why the ED’s reading of section 8(3) fails on the ordinary tools of construction, and finally what is at stake institutionally if the Tribunal’s approach stands.

The Interpretive Question

Three provisions of PMLA govern what happens to property after an ED search:

• Section 17(1) empowers authorised officers to search and seize, or where seizure is impracticable, freeze property, on a recorded reason to believe. Section 17(2) requires the officer to forward those reasons and material to the Adjudicating Authority immediately. Section 17(4), inserted by the 2013 amendments, requires the officer, within thirty days, to file an application before the Authority "requesting for retention of such record or property seized....or for continuation of the order of freezing."
• Section 20 is titled "Retention of property". Section 20(1) provides that where property has been seized or frozen under Section 17, an officer authorised by the Director who has recorded fresh reasons to believe that the property "is required to be retained for the purposes of adjudication under Section 8" may retain or continue the freeze for up to 180 days. Section 20(2) requires that retention order and accompanying material to be forwarded to the Authority. Section 20(3) mandates return of property on expiry of 180 days unless the Authority permits continuation. Section 20(4) requires the Authority, before permitting such continuation, to satisfy itself that the property is prima facie involved in money-laundering and required for adjudication.
• Section 8(3) provides that where the Adjudicating Authority decides under Section 8(2) that property is involved in money-laundering, it shall, "by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or record seized or frozen under section 17 or section 18" whereupon the attachment or retention may continue during investigation for up to 365 days, or the pendency of proceedings.

The dispute here is about the "or" in Section 8(3) PMLA and the operative verb. Does "confirm" distribute across both objects, so that the Authority confirms either a Section 5 PMLA attachment or a Section 17/18 PMLA retention that must first exist under Section 20? Or, does "or" introduce a separate, verb-free power for the Authority to directly order retention on a section 17(4) application, bypassing section 20 entirely?

What the Delhi High Court Held, and What has Followed

In Rajesh Kumar Agarwal, the Delhi High Court read the PMLA scheme as sequential, where Section 17 supplies the seizure/freeze power, Section 20 supplies the executive-layer retention authority for up to 180 days, and Section 8(3) supplies quasi-judicial confirmation for any continuation beyond that. Section 17(4) PMLA is the procedural mechanism through which the officer brings the matter before the Authority and is not an independent retention mechanism [Rajesh Kumar Agarwal (41)–(60)]. Retention not founded on a Section 20 order is void ab initio, incapable of being cured by later confirmation [Anirudh Pratap Agarwal (88)].

This decision is, for now, settled law in the Delhi High Court. Anirudh Pratap Agarwal v. Enforcement Directorate called Section 20 "the crucial link" between seizure and adjudication [Anirudh Pratap Agarwal (34)]. Directorate of Enforcement v. Poonam Malik followed. Ravi Aggarwal v. Deputy Director, Enforcement Directorate treated Rajesh Kumar Agarwal as binding precedent and held that section 8(3) "only governs confirmation."

Why the Per Incuriam Label Fails

The doctrine does not fit on its own terms

A decision is per incuriam when rendered in ignorance or forgetfulness of an inconsistent statutory provision or a binding authority. The AT-PMLA itself quoted Morelle v. Wakeling and Municipal Corporation of Delhi v. Gurnam Kaur to this effect [M/s N K Proteins (58), (60)], correctly stating that decisions given "in ignorance of the terms of a statute" may be treated as per incuriam. But Rajesh Kumar Agarwal was not rendered in ignorance of section 8(3): it construed that provision exhaustively alongside Sections 17 and 20. 

The ATPMLA held that Rajesh Kumar Agarwal is in conflict with the Supreme Court's judgment in Vijay Madanlal Choudhary v. Union of India. This claim has a structural problem though which the ATPMLA did not confront: Vijay Madanlal Choudhary was a constitutional challenge to the PMLA's enforcement architecture, not a case where the precise sequencing of Sections 20 and 8(3) was in issue. Paragraph 84 of that judgment describes the Section 17(2) and 17(4) safeguards in general terms, noting that the Authority "passes an order of retention" following a show-cause process, as part of the Supreme Court's analysis that the overall scheme contains inbuilt safeguards rendering it constitutionally valid.

It does not decide, because it was not asked to decide, whether a Section 20(1) order is a mandatory precondition to the Authority's section 8(3) power. A constitutional imprimatur on the overall architecture is not a specific holding on a sequencing question within that architecture. A court that subsequently decides that sequencing question does not thereby "ignore" the constitutional approval judgment. The Tribunal treated these as interchangeable when they are not.

Nor does the supposed conflict with Vijay Madanlal Choudhary sustain the per incuriam label even on its own terms. There is a fundamental difference between saying that a judgment is inconsistent with, or departs from, Paragraph 84 and saying that it is per incuriam because paragraph 84 was overlooked. Per incuriam requires ignorance of a binding, applicable ratio; it does not require agreement with every prior holding on a general scheme. The ATPMLA conflated disagreement with a precedent and holding that the precedent was per incuriam, which are entirely different propositions.

A lower adjudicatory body may disagree with a High Court's reasoning, but it lacks the institutional authority to treat that precedent as non-binding on that basis alone.

A Tribunal cannot in any case apply the label to a High Court

Even if the doctrine technically applied, the ATPMLA cannot invoke it against a judgment of the Delhi High Court. This is directly settled. In Union of India v. Chand Singh, the Delhi High Court held that "it is not open to the Tribunal to characterise a judgment of a High Court as per incuriam." [Chand Singh (7)]. One narrow latitude was recognised: where a tribunal has before it Supreme Court judgments that state the law differently from a High Court, it may follow the Supreme Court in preference. That is not a licence to call the High Court wrong on the statute; it is a duty, in cases of genuine conflict, to follow the higher court. That latitude is unavailable here because the claimed conflict with Vijay Madanlal Choudhary does not exist. 

What we have is a statutory tribunal substituting its own reading of section 8(3) for that of the High Court. The constitutional architecture forecloses this. The Supreme Court in East India Commercial Co. v. Collector of Customs held that a tribunal subject to a High Court's superintendence cannot ignore the law that court has declared and proceed in violation of it; if it could, the entire logic of supervisory jurisdiction collapses [East India Commercial Co Ltd (14), (31)]. L. Chandra Kumar v. Union of India placed High Court superintendence over tribunals within the basic structure of the Constitution [L. Chandra Kumar (79), (92)].

Why the ED's Interpretation Cannot Hold: A Convergence of Methods

The foundational error does not depend on the underlying interpretation being wrong. But it is worth examining why multiple orthodox techniques converge against the ED's position, because the Tribunal treated the grammar point as sufficient without considering what it does to the rest of the Act.

Grammar and the distribution of "confirm"

The subject-verb-object structure of section 8(3) is: "he shall, by an order in writing, confirm the attachment... or retention... under section 17 or section 18". "Confirm" is the operative verb, governing a single object list connected by "or." On the ED's reading, "or retention" introduces a power to originate retention, i.e. a power for which there is no verb in the sentence and no source in Section 8's architecture.

The Tribunal read "or" as disjunctive and derived from it a new, separate power. But "or" being disjunctive establishes only that there are two distinct objects; it does not supply a second, different verb [M/s N K Proteins (37)]. Filling that gap requires reading words into Section 8(3) that Parliament did not write, which is precisely what the Supreme Court in Vijay Madanlal Choudhary itself said constitutes rewriting the statute [Vijay Madanlal Choudhary [33)].

The Section 5 PMLA Structural Argument

The most telling textual point comes from a direct comparison with Section 5 of the PMLA. Section 5(1) reads: "he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order". This language is self-contained. It grants the Director an executive power of attachment directly, sets its own duration, and requires no separate provision to authorise retention. Section 8(3) then "confirms the attachment... made under sub-section (1) of section 5" and it confirms a prior executive order that Section 5 itself generates.

Section 17’s drafting rationale clearly departs from section 5. It could have, in order for it to be construed as a similar self-containing code, included language providing that the seizing officer may, by order in writing, retain such property for a period not exceeding 180 days. It does not thus, replicate the logic of section 5. Section 17 authorises officers to seize or freeze and contains no self-standing retention authority whatsoever. The officer who seizes under Section 17(1) has no power under section 17 to retain. Section 17(4)'s language confirms this: the officer files "an application requesting for retention", the language of petition to another body, not the language of independent executive order.

The retention authority for Section 17 PMLA property was placed, deliberately and separately, in Section 20. Section 20(1) mirrors section 5(1) in structure and provides that property "may, if seized, be retained... for a period not exceeding one hundred and eighty days". That is the executive retention order. Section 8(3) then confirms it, in the same manner that it confirms the section 5 attachment in the attachment track.

The expressio unius (Latin: expression of one thing is exclusion of another) inference is straightforward.  Parliament clearly enacted two enforcement tracks in the same statute. Under the attachment framework in Section 5, the authority to act and the authority to retain the property for 180 days are contained within a single provision. By contrast, under the search-and-seizure framework, Parliament distributed those functions across Sections 17 and 20, with Section 17 authorising the initial seizure and Section 20 governing subsequent retention. This structural choice reflects deliberate legislative design, where both tracks converge at section 8(3) for quasi-judicial confirmation but both require a prior executive order.

The ED’s argument effectively treats a seizure under Section 17 PMLA as the functional equivalent of an attachment under Section 5 for the purposes of Section 8(3). On this view, the Adjudicating Authority may confirm the seizure itself, even in the absence of a prior order under Section 20. Such an interpretation collapses the distinction that the statute deliberately maintains between the attachment and seizure mechanisms. If a seizure under Section 17 were by itself sufficient to attract Section 8(3), Section 20 would cease to perform any independent role within the search-and-seizure framework. The result would be to render Section 20 redundant, which is a consequence that the statutory scheme does not support.

Differential predicates

Section 20(1) PMLA obliges the authorised officer to record reasons showing that the property must be retained for the purposes of adjudication under Section 8. Section 8(2), which serves as the basis for any order under Section 8(3), requires the Adjudicating Authority to make a substantive finding that the property is involved in money laundering. These are materially different standards operating at different stages in the procedural machinery. The Section 20(1) determination is only a preliminary, executive-level judgement about investigative need while the Section 8(2) determination is a quasi-judicial finding on merits.

If the Section 17(4) PMLA application goes directly to the Adjudicating Authority without any section 20 order, the Authority is asked to make a full-blown section 8(2) money-laundering determination at the earliest possible post-seizure stage, before investigation is substantially complete, basis only the material forwarded under section 17(2). Parliament's decision to give the ED 180 days under section 20 exists precisely because that determination cannot responsibly be made immediately. Collapsing these tiers forces the Adjudicating Authority into an adjudication on merits at a stage for which the statutory scheme provides no adequate procedural preparation.

The Convention architecture

The PMLA's Statement of Objects and Reasons, reproduced in the Solicitor General's Note II, names the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 as one of the international instruments calling for prevention of laundering of drug proceeds and confiscation of proceeds derived from such offences. Chapter VA of the Narcotic Drug and Psychotropic Substances Act, 1985 (“NDPS Act”) was enacted to implement the same Convention's Article 5 on confiscation, and its seizure-confirmation architecture under Section 68F is a two-step structure where the investigating officer seizes or freezes under section 68F(1), and the quasi-judicial competent authority confirms within 30 days under section 68F(2), failing which property is returned.

That confirmation power is precisely a power of confirmation, not an original power of seizure. PMLA was enacted to address the money laundering which the NDPS regime had left uncovered, extending the Convention's framework to the full range of scheduled offences. If the ED's reading of Section 8(3) as an original retention power were correct, that expanded statute would provide fewer executive-layer accountability steps in its search-and-seizure track than the narrower NDPS regime it was designed to go beyond. That outcome can’t be reconciled with the Centre's own framing of PMLA as giving effect to India's Convention obligations.

The Institutional Stakes

The Tribunal’s interpretive disagreement with the Delhi High Court can very well be legitimate. The question remains contested, and with both Rajesh Kumar Agarwal and Anirudh Pratap currently pending before the Supreme Court, awaiting the Apex’s resolution on interpretation. The difficulty lies not in the Tribunal’s disagreement, but in the institutional consequences it drew from it.

The ATPMLA sits in a legal order where it is subject to Delhi High Court jurisdiction under Articles 226 and 227 of the Constitution and, hears appeals that travel to the High Court under Section 42 of PMLA, and has before it a consistent body of Division Bench authority directly on point. If it disagrees with that authority, the remedies open to it are narrow and well-defined, which are to follow the High Court while recording the difficulty and distinguish on facts where facts genuinely differ. Declaring a Division Bench judgment per incuriam is not one of those remedies.

The practical consequences of the Tribunal's approach, left unchallenged, are that Section 20 protections become effective only for those who can afford to litigate back to the High Court under Section 42. The Adjudicating authority cites the ATPMLA and thus it has immunised itself from High Court correction. Property seized without a Section 20 PMLA order stays seized, and Article 300A operates at the Tribunal's discretion rather than as a function of law. That is not a procedural quibble. It is the difference between a safeguard that functions and one that exists only on paper.

Guest Post: Indiscriminate by Design - Case against Pellet Guns

(This is a guest post by Rudraksh Lakra)

Pellet guns entered the conversation around Indian protest policing in July, when the Rapid Action Force used them against demonstrators at the Cockroach Janta Party (“CJP”) march in Delhi. This is not new territory; security forces have deployed pellet-firing shotguns against protesters in Jammu and Kashmir since the early 2010s.

While hearing petitions concerning the violence during the CJP protest, the Supreme Court observed that pellet guns may be used in exceptional circumstances. This approach mirrors the Court's response in 2017 when it considered the excessive use of pellet guns in Jammu and Kashmir. The Court observed that pellet gun deployment ought to require proper application of mind by the authorities.        

I find this approach deeply unsatisfactory. In 2017, the Court did not seriously examine whether pellet guns were themselves constitutionally permissible. In 2026, even at the stage of interim relief, the Court observed that pellet guns may be used in exceptional circumstances, nudging against a constitutional challenge to the weapon itself. In both instances, the Court chose to regulate the manner in which pellet guns may be deployed rather than asking whether they are compatible with the constitutional guarantees of life and peaceful assembly.

In contrast, I argue that the use of pellet guns for policing protests fails the proportionality test because they are inherently indiscriminate and excessive by design. Unlike conventional ammunition that discharges a single projectile, pellet cartridges release dozens or even hundreds of metal pellets in India that spread over a widening area immediately after being fired. Once fired, each pellet travels independently, making it impossible to confine the force to a particular individual. The foreseeable area of impact extends beyond the intended target, exposing nearby protesters, journalists, bystanders, and even persons attempting to leave the assembly to serious injury. 

The resulting injuries are determined more by the mechanics of the ammunition than the decision to pull the trigger. This matters because it moves the inquiry away from the conduct of the individual officer. An officer who exercises restraint, aims carefully, and fires in line with official instructions still cannot control where each pellet lands once it leaves the barrel. The risk of striking unintended persons is built into the weapon rather than caused by poor implementation. Procedural safeguards can govern the decision to fire, but they have no bearing on the trajectory of a pellet after it has been discharged. 

The severity of injuries caused by pellet guns further demonstrates why they are unsuitable for policing assemblies. Metal pellets penetrate soft tissue and frequently strike highly vulnerable parts of the body, particularly the face and eyes. Victims can suffer permanent blindness, retinal detachment, ruptured eyeballs, facial fractures, internal bleeding, nerve damage, lung injuries, and abdominal trauma (see here, and here). In Jammu and Kashmir, between 2015 and 2017, pellet guns were responsible for the deaths of at least 17 people. The Jammu and Kashmir Chief Minister, Mehbooba Mufti, informed the Legislative Assembly that between July 2016 and February 2017 alone, 6,221 persons sustained pellet injuries, including 782 eye injuries. More than 1,000 Kashmiris have suffered partial or complete loss of vision since pellet guns were introduced in 2010.

This is also why leading human rights organisations have consistently concluded that pellet guns are unsuitable for policing assemblies. Physicians for Human Rights and the International Network of Civil Liberties Organizations concluded that pellet rounds disperse multiple projectiles across a broad area, making accurate targeting impossible. For this reason, they recommend that kinetic impact projectiles firing multiple pellets should be prohibited during protests. The Omega Research Foundation similarly explains that the spread pattern of pellets is inherently inaccurate and that the pellets can lodge in multiple parts of the body, making medical treatment significantly more difficult.

The United Nations guidance on less lethal weapons in law enforcement notes that weapons firing multiple projectiles generally cannot comply with the principles of necessity and proportionality, and recommends banning metal pellets, fired from shotguns like in India.  Human Rights Watch also calls upon India to prohibit the use of metal pellet shotguns for crowd control. This inability to distinguish between individuals, and its capacity to inflict serious physical injuries, renders it incompatible with international human rights law. 

Therefore, a constitutional framework founded upon necessity and proportionality cannot accommodate a weapon whose ordinary operation creates a foreseeable risk of striking persons who were never intended to be hit. 

The same conclusion follows from domestic law governing the use of force. Sections 148 to 150 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), corresponding to Sections 129 to 131 of the Code of Criminal Procedure (“CrPC”), embody a principle of graduated force while dispersing unlawful assemblies. Section 149(3) of the BNSS, corresponding to Section 130(3) of the CrPC, expressly requires that the armed forces use "as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly." In Anita Thakur v. Union of India (2016), the Supreme Court held that force used to disperse an unlawful assembly must remain reasonable and confined to what is necessary to restore order. In Ramlila Maidan Incident v. Home Secretary (2012), the Court recognised that excessive force by the police, including disproportionate use of tear gas, and noted that these actions had “an element of criminality”. A weapon that is inherently indiscriminate, and excessive sits uneasily within a statutory scheme built around a graded, minimal, reasonable, and proportionate response.

For these reasons, I believe the Supreme Court's protocol and safety-based approach to pellet guns addresses a symptom rather than the underlying problem. A weapon whose ordinary operation predictably disperses uncontrollable projectiles cannot be rendered proportionate through better training, stricter authorisation or revised operational guidelines. The documented experience of Kashmir demonstrates that the harms associated with pellet guns are systemic rather than accidental. The constitutional guarantees of life and assembly therefore require a categorical prohibition on the use of pellet guns in protest policing.