Guest Post: 'Complaint Cases' as Scheduled Offences under the PMLA

(This is a Guest Post by Sandeep Dash)

On 16.12.2025, a Court of the Special Judge, PMLA, in Rouse Avenue Courts, Delhi, passed a detailed order refusing to take cognizance of the Prosecution Complaint (‘PC’) under provisions of the Prevention of Money Laundering Act, 2002 (‘PMLA’) by the Enforcement Directorate (‘ED’) in the National Herald case.

The investigation and PC in the case stemmed from an order by the Court of a Metropolitan Magistrate taking cognizance of offences on a ‘private complaint’ by Dr. Subramanian Swamy against Sonia Gandhi, Rahul Gandhi and others alleging commission of offences under Sections 403, 406 & 420 read with Section 120B of the IPC, 1860. The details of the allegations in the said complaint are secondary to the present discussion.

During the pre-cognizance hearing (introduced under the BNSS), the proposed accused argued against maintainability of the PC, arguing that the ED had no jurisdiction to commence investigation under the PMLA in the absence of a First Information Report (‘FIR’) for the scheduled offence. Since the scheduled offence was based only on a complaint filed by a ‘private person’ under Section 200 Criminal Procedure Code 1973, it failed to meet the threshold requirement of an ‘FIR’ to initiate investigation and prosecution. On the contrary, the ED argued that PC was maintainable, as the scheduled offence could arise under three situations – either from a FIR, or a statutory complaint by a public servant or a private complaint.

The Court’s order hinges on the determination of a question of law that it frames early in the order – whether the registration of a FIR for the scheduled offence is a threshold requirement for investigation and consequent prosecution under the PMLA? Answering in the affirmative, the court reasoned that the ‘investigative potential of a FIR’ was much more than a ‘complaint’. In the facts of the case, I agree with the decision of the court. However, by framing the issue only around the necessity of an FIR, the court created an impression that an FIR is the only condition under which investigation and prosecution under the PMLA can be initiated.

I argue that a more general line of enquiry, with the question formulated as – ‘what is a threshold requirement for investigation and consequent prosecution under the PMLA?’ yields more appropriate answers to the when a scheduled offence is said to have been committed for triggering a PMLA investigation. In this, I argue firstly, that while it is correct that institutional investigation is a sine qua non for triggering PMLA investigation, the same can be done through ‘complaint cases’ and not necessarily only through FIRs; and secondly, that the law laid down in Vijay Madanlal Chaudhary indicates additional safeguards in such non-FIR scheduled offences.

The law on money laundering, as it is now understood in India, is hinged upon two key concepts – the ‘scheduled offence’ and ‘proceeds of crime’. Money laundering is variously described to be a ‘piggy-backing’ offence; others have called it a ‘parasitic’ and ‘dependent’ offence. What this means is that an offence of money laundering can come into the picture if and only if another offence has already taken place. This latter offence is called a ‘Scheduled Offence’, and ought to be one or more from among the various offences listed in the Schedule to the PMLA.

For instance, for laundering murder ransom money, the commission of murder is a prerequisite. The offence of ‘murder’ then becomes the ‘Scheduled Offence’ and the ransom ‘derived and obtained’ by committing this ‘Scheduled Offence’ becomes ‘Proceeds of Crime’. As soon as any dealing is done with these ‘Proceeds of Crime’ (handling, concealing, transferring, transforming, etc.), an offence under the PMLA can be said to be made out. What that means is that you may not have murdered anybody, and hence, will not be liable for the offence of murder u/s 302 of the Indian Penal Code, 1860 (S. 101 of the Bharatiya Nyaya Sanhita, 2023), but still be liable for helping move the ransom money under Section 3 of the PMLA.

For the purpose of the PMLA, when is a scheduled offence said to have been committed? Can it be said to have been committed at the moment of its actual physical commission, as in when the murderer’s axe lands on the neck of the victim, and he dies? Or can it be said to have been committed when the law is set in motion against such a murderer, as in his arrest or the making of a complaint about the murder by an eyewitness, or registration of an FIR? Or, further still, can it be said to have been committed when the issue is investigated by the police, and a formal charge is filed before the court?

Answering this question is key to understanding and answering the question facing us – at which stage can the ED jump in and initiate proceedings under the PMLA? Can it initiate PMLA proceedings, when –

1. Though a ‘Scheduled Offence’ has been committed, it has neither been reported nor investigated.
2. Though not investigated, it has been reported.
3. It has been investigated, and the perpetrator has been formally accused.

The bare statute of PMLA is not very helpful in answering this question. However, some help came in the form of Paragraph 31 in Vijay Madanlal Chaudhary: “The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression “derived or obtained” is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence.”

What we see in these paragraphs is some narrowing down of the situations when the ED can exercise the full range of its powers. Two situations emerge:

• A scheduled offence has been committed, and the said offence is registered with the jurisdictional police, i.e., an FIR under Section 154 Cr.P.C.OR
• A scheduled offence has been committed, and it is pending inquiry/trial by way of a Complaint (There is a 3rd, very important situation where the ED may jump in to a limited extent, i.e., through disclosure u/s 66(2) of PMLA, which is beyond the scope of this discussion).

Situation (i) is straightforward, and the registration of a FIR is enough for the ED to get going. This is not disputed by anybody. Situation (ii) is the tricky bit, and it is essential to understand what the words ‘Complaint’ and ‘pending inquiry’ mean here. First, what is a ‘Complaint’? Under the criminal procedure in India, the criminal law can generally be set in motion either through the police/other Law Enforcement agencies competent to file Final Reports u/s 173 Cr.P.C. or by way of complaints, made directly to the Magistrate u/s 200. We are not concerned about the police here, but rather with the route of ‘complaint’.

These complaints can be made by two kinds of persons: firstly, by private persons and secondly, by certain authorities. In case of private persons, for instance, anyone may initiate criminal proceedings by filing a ‘private complaint’ before the Magistrate, who can then either order the registration of an FIR and investigation by the police, or may take cognizance and proceed for a trial based on the material in the complaint itself. This latter route is the way that Dr. Subramaniam Swamy’s complaint came to be.

Would such a complaint, disclosing offences mentioned in the schedule to the PMLA, confer jurisdiction to the ED? Would that not mean that a complaint filed by anybody (which includes a ‘nobody’) can become the basis for subsequent action by the ED? Dr. Subramaniam Swamy perhaps has nothing to do with the National Herald, and in that sense, is not even a ‘victim’. Can such complaints, often political, be enough for the ED to move in? Will it not be an affront to justice if anybody and everybody is handed the power to potentially become the architect of a money laundering investigation?

These are legitimate questions; however, the court’s order does not venture into this territory of enquiry. Instead, it looks at the bare statute of PMLA and accompanying rules. The first proviso to Section 5(1) of the PMLA in the context of a provisional attachment order says that – “Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country”

Reading this (this is the only remaining place in the entire act, where this issue finds mention) suggests that it is only the complaints filed by the authorities investigating under the respective offences mentioned in the schedule that can be the basis of action by the ED. A similar provision is part of Rule 3(2) of the Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and Manner of Forwarding the reasons and Material to the Adjudicating Authority, Impounding and the period of Retention) Rules, 2005.

A contextual reading of the order, where it interprets Vijay Madanlal Chaudhary, does reveal that the court was cognizant of the possibility of such non-FIR-based scheduled offences (See Para 151 of the order). However, the restrictive framing of the question prevented the court from delving deep into why it is only the kind of private ‘complaint’ case filed by Dr. Subramaniam Swamy that fails to meet the threshold for the ED to investigate, and not all complaint cases in general.

In the order, the court misattributes wide investigative powers (arrest, search, recording of statements, etc.) only to an Investigating Officer investigating under an FIR. The discussion by the court gives an impression of a blanket exclusion of complaint cases. But if that is the case, how would non-IPC offences, which are part of the schedule to the PMLA, but require no FIR for investigation, and are prosecuted through ‘complaints’ under Section 200 Cr.P.C., trigger a PMLA investigation?

An illustrative list of offences in the schedule that are investigated by ‘authorities’ other than police, and prosecuted by way of ‘complaints’, is useful:

Sr. No.	Act in the PMLA Schedule	Offences in the Schedule	Investigative Authorities	Empowering Section
1.	Environment Protection Act, 1986	Section 15 r/w 7 and Section 15 r/w 8	Several officers, including the District Collector, Secretary to the Ministry/Department of Environment, the Seed Inspector, Officers in the Central & State Pollution Control Boards, etc.	Section 19 r/w Notification No. S.O. 394(E), published in Gazette No. 185, dt.16.4.1987 & further amendments
2.	Customs Act, 1962	Section 135	Officers of the Customs Department	Section 137
3.	Securities and Exchange Board of India Act, 1992	Section 12A r/w 24	Securities and Exchange Board of India	Section 26 r/w 2(1)(a)
4.	Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015	51	Income Tax Department	Section 55

 

Note that many of these authorities can also exercise powers of arrest, search, and seizure, recording of statements, collection of specimens, etc., under their respective special laws, despite not being ‘police’. A cumulative reading of the statute, the schedule and the law laid down by the Supreme Court in Vijay Madanlal Chaudhary points to the fact that not all scheduled offences arising out of complaint cases are out of bounds for the ED. Complaint cases by persons authorized to investigate those offences, where there is no provision for an ‘FIR’ can be the basis for investigation by the ED.

Insofar as a ‘complaint case’ by a private person is concerned, the court was right in its order to hold that it cannot be the basis for action by the ED. Apart from the reasons discussed above, there are other logistical and ethical reasons for not allowing something like this. From the perspective of the state, collusive and weak complaints are often filed to defeat a genuine complaint, which would then defeat the PMLA case. From the perspective of the accused, as is the situation in the present case, Mr. Swamy allegedly delaying the trial in the complaint case, thereby also potentially compromising the progress of the PMLA case, is also a case in point.

The second leg of my argument is that in complaint cases, the ED cannot investigate until the court before which the complaint has been filed by the concerned authority has taken cognizance of the complaint. There are two legs to this argument. The first needs us to understand what the phrase ‘pending inquiry’ used above in Paragraph 31 in Vijay Madanlal Chaudhary. I argue that the stage of inquiry in a Complaint case is always post-cognisance by a magistrate, in terms of the ratio laid down by the Hon’ble Supreme Court in Rameshbhai Pandurao Hedau & Pradeep S. Wodeyar. In fact, in most places, complaint cases are not formally registered/numbered till the court has taken cognizance of the case. Dr. Abhishek Manu Singhvi, in an election affidavit filed before getting elected to the Rajya Sabha, gave a glimpse into this practice. The image is attached below.

This means that the ED, in case the scheduled offence is not registered by way of a FIR/Chargesheet but rather, a ‘Complaint pending inquiry’ filed by a person authorized to investigate that offence, can exercise jurisdiction if and only if the magistrate/court has taken cognizance of such a complaint. Where no cognizance has been taken in a complaint case, the ED cannot prosecute, as it would have no locus to investigate the case.

There is also a logical answer to why cognizance is important in ‘complaint cases’. Time and again, the highest courts of the country have decisively held that there ought to be a judicial application of mind before passing an order of cognizance. The summoning of an accused in a criminal trial is a serious matter, which must be done after a thorough examination of the evidence, both oral and documentary. A summoning order can be passed only after providing cogent reasons – this position of law was most recently reiterated and summarized by the Supreme Court in JM Laboratories. 

In complaint cases, this threshold must be strictly enforced. The reason is simple – investigations by the police are technically supposed to be monitored by the area magistrate where the police station falls, and thus, at least theoretically, the investigation is judicially monitored. In complaint cases, even by authorities, no such monitoring exists, and thus, greater scrutiny is warranted.

Coming to grips with the BNSS on matters of Custodial Remand

One of the more significant changes to Indian criminal procedure brought about by the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] is the regime governing remands to police custody during an ongoing investigation. 

As those familiar with the legal regime may know, Section 167(2) of the erstwhile Criminal Procedure Code, 1973 [Cr.P.C.] had been read by courts as casting two rules: (1) permitting a maximum 15 days of police custody remand during investigation (found clearly within the statute) and (2) allowing this remand to be granted only in the first fifteen days after an arrest. The BNSS has retained rule (1), and modified rule (2). Section 187 of the BNSS now permits the 15 days of police custody to be sought at any point of time within the first forty or sixty days of arrest, depending on the severity of an offence.

I'm not interested in the debates about whether this relaxation of the first fifteen days rule is good policy or bad. Instead, I wanted to flag an issue of some practical relevance arising from the changes to this regime, which has received surprisingly little attention. This is the impact on legal strategy for opposing remand and seeking bail, and pre-trial custody more generally.

Police custody remand is widely understood and accepted as being the critical investigative step in cases. It allows police practically unregulated and unhindered access to an accused for questioning in a coercive setting — since lawyers aren't permitted to participate in the questioning process. The outcome of police custody is often a confession of some sort, which leads to further clues. Usually, requests for such custody would be granted for short periods — so if police ask for a week, they normally get 3 days in which they get done whatever is needed, and come back to ask for more custody if needed.

Because of the importance wielded by police custody remand, lawyers in the grand-old Cr.P.C. days would not file for bail in serious crimes till it was clear that police custody remand was over. In most cases, this meant waiting out the first fifteen days period, and then moving for bail, because even if police had not sought police custody for that entire period, they could no longer seek such custody due to the first fifteen day rule. Courts also understood this logic and it would be an active consideration for deciding bails — if no further police custody remand was possible, it was understood that further pre-trial custody had no real investigative purpose. 

Now, though, police custody can theoretically be sought for and granted at any time till forty or sixty days of an arrest. For an rational investigator, it would make sense to not exhaust the total police custody period in the first fifteen days. This places both judges and lawyers in a bind, because now you cannot reasonably argue that there is no investigative purpose for further custody till forty or sixty days after an arrest.

How will this play out in the medium to long term? Custody periods may lengthen; some guidance may come from appellate courts on how magistrates should treat requests for police custody made belatedly, It may well not lead to any change at all, as police may rarely, if ever, ask for that period of remand that they may have been left with.        

Postscript: Three takeaways from the Story of Jury Trials in India

Before moving on to other things in the present, I thought the series on jury trials could do with a finishing touch. This postscript tries to contextualise and organise thoughts around the decade-long story that was retold across four posts; areas where this story can be useful for scholars in India as well as abroad looking to draw connections. I have tried to narrow this down to three takeaways: (i) lay participation in criminal law, (ii) searching for principles in the criminal process, and (iii) strategies of criminal justice reforms.

Lay Participation in the Process

A theme in the evolution of jury trials from antiquity till the 1950s has been the growing emphasis placed upon truly democratising and opening up the jury. From being comprised of landed elites and others having special knowledge about the area and its people, by 1950 the law in England and across many states in USA permitted almost anyone to serve on the jury. This shift in the law and perceived opening up of the criminal process saw contemporary debates about the value of lay participation in the process, and it has also been a focus of scholarly inquiry later [See, here, here, and here, for instance].  

British administrators, and later legislators, introduced the jury convinced of its relative benefits. But the worry about not having the right kind of people for this job was ever-present for the 100 or so years in which jury trials were seen in different parts of the subcontinent during various phases of colonial rule. It led to restrictive jury lists, where till the 20th Century no 'native' Indian was allowed to serve, and the opening up of jury lists still only letting in those with property and high educational qualifications. The limits on the use of juries, as well as participation in them, was one more argument in the quiver of the nationalist movement's case to demonstrate inequality under colonial laws.

You would imagine that independence, and specifically adoption of universal adult franchise as the model for a new republican state, would lead to radical enfranchisement in the jury process. As we have already seen, though, independence did not lead to any such change in attitudes. In fact, not having the right kind of people for running jury trials was one of the strongest, if not the strongest, point taken for abolishing them. The loudest voices in the room making these noises about bad jurors were usually not legislators, but lawyers and judges, who repeatedly highlighted the unique expertise demanded for administering law which was just not available with ordinary Indians.

The arguments against jurors were mostly emotive and, quite often, purely elitist. Simply put, it often reduced itself to the uneducated and illiterate person — by far a majority in 1950 — being unable to keep pace with the law's technical workings. But the entire history of juries stood as proof that the ordinary person could very often deliver justice in spite of these hindrances. And their position as laypersons gave them a unique ability to cut through the law's mirage at times, especially in police cases where a tutored witness could be identified. The available data of the time also showed as much — statistics gathered in 1953 by the Home Ministry at the insistence of Dr. Katju suggested that verdicts in bench trials were overturned as frequently, if not slightly more frequently, than in jury trials. 

By couching their argument in a point about expertise and unique ability, the lawyers and judges critical of jury trials were perhaps trying to downplay their inability to adequately simplify cases for juries to aid their decision-making. A key component of jury trials was the judge's instruction to the jury about the case: summarising the facts and explaining the law. Very often in appeal we saw that High Courts while overturning verdicts did so not because of jury incompetence but because of judicial incompetence in giving a proper instruction to the jurors about the points of law. The infamous Nanavati case was no exception. But because the official voices were often the only voices in consultations, the point about bad jurors went uncontroverted.

Which then brings up the point about jurors from a political standpoint. Why is it that a country which broke all convention and invested the populace with universal adult franchise was willing to distrust the same populace with having any role in administering the state? Perhaps, here we see a schism between periodically electing persons to positions of power, and directly holding state power accountable. This would tie in with theories about how independence and adoption of a constitution did not really alter the "conversation with power" in India. The preference still being structures which allowed the state machinery run by expert technocrats to do its own thing without meddlesome interference by the ordinary untrained man on the street.

Finding a Purpose in the Criminal Process

The discussion about jury trials was part of a much larger debate in the 1950s about the criminal process. What purposes would guide it, what values would inform it, and so on. After the initial spurt, though, we saw that the conversation turned its back on anything too radical, and settled on just one principle for the time being: Maximising Efficiency.     

One can argue that efficiency has been the only constant principle linking criminal law making before and after independence. The East India Company Regulations were driven by a spirit of efficient governance. Codification had efficiency at its heart. And a post-independence India bent on achieving social transformation had no patience for slow laws. 

The criminal procedure amendments of 1955 were run almost with a single-minded objective of making trials faster and the conversation around juries was also, quite naturally, affected by this perspective. Running the bad jurors argument a close race as the leading cause to remove jury trials was the point about this process being inefficient and hopelessly expensive.

But, is this a good argument or principle? Efficiency as a principle in organising legal process has been the subject of in-depth study in other parts of the world because more and more countries have turned to efficiency as the reason for changing parts of the criminal process [for example, here]. Quite often, lost at the altar of efficiency were the procedural protections meant to ensure fairness to persons standing trial. The jury trial, that 'palladium' of liberty, is the classic procedural protection serving this purpose, and scholars have demonstrated globally how it has been gradually eroded on account of efficiency and what this means for ideas of justice and fair adjudication in the criminal process. 

The story about the jury in India shows that this is a topic of interest even for our jurisdiction, and one that deserves greater scrutiny going ahead.  

Strategies of Reforming Criminal Justice

Lastly, I think the jury episode is also interesting from the point of view of reforms in the criminal process; a topic of contemporary relevance in India (and abroad too). In arguing for removal of jury trials - or even assessor-aided trials - from the statute book, what were the mechanics of the removal itself by the legislators? Most of them were content to remove the relevant clauses from the code, and that was that. This approach of viewing the criminal process as a modular setup is how most reforms had been carried out in the past, and arguably continue to be carried out in the present as well. Remove what you don't like (jury trials), and strap on new parts which you have a fancy for (plea bargaining).

A modular approach to understanding the criminal process may well work for some parts of that process, but it is entirely unsuited for understanding and contemplating about the process as a whole. Simply put, there are only some small aspects of this process which you can remove or add without casting a ripple effect across the entire system, and that assumption does not hold for all aspects of the process. 

Taking the jury out is one great example of fiddling with an aspect of the process that was not an appendage but had been a critical part of the statutory process as well as its judicial evolution. The assumption about expanding jury trials had been at the heart of the codification enterprise in criminal law. Many parts of criminal procedure and the law of evidence were crafted keeping in mind jury trials. Legal principles had evolved at the common law specifically keeping in mind jury trials, and Indian criminal courts imported this to the subcontinent. Many unsaid 'rules' in the system (such as corroboration of approver testimony) were all good practices which emerged to ensure fairness in running jury trials.

Can we think of removing jury trials from a system which had been dealing with them for more than a century by simply excising the set of provisions from the text of law, without grappling with any of these other aspects? You get the point. Yet, this is precisely the kind of approach that was suggested at the time. 

While it did not prove successful with jury trials, it did achieve success in many other aspects of the criminal process as it existed in the 1950s by way of the 1955 amendments, which took a wreaking ball to the existing process in the name of efficiency. Adopting a modular approach to the process, the legislature chopped and changed the criminal procedure code without giving much thought to what it would mean for the internal cohesion of the procedural scheme. This led to a strange legal process full of contradictions, which continues till today. For example, even as the law prohibits placing reliance upon police-authored testimonies as evidence, this material is still treated good enough not only for charging persons with offences but also ensuring that they remain behind bars for more than five years without trial.

Summing Up

There is a lot of rich material in Indian history waiting to be discovered and examined critically by scholars in India and abroad that would speak to many contemporary debates about the criminal process. The story about what happened to jury trials in independent India is one such example. These posts give an introduction to those interested in the field, and I hope that they can be of use to everyone who is willing answer and engage more critically with the law as it is today. If the law is an ass, which it often is, let us at least try and understand how we got here.

The End of Trial by Jury in India — Part IV: Looking Back at a Tumultuous Decade

[This is Part IV in a four-part series. Links to other parts here: Part I, Part II, Part III]

We saw in the previous post that the proposal for abolition of provisions on juries mooted by the Bombay Government was kept pending by the Centre in September 1959, on grounds that the Law Commission's findings on the jury issue were yet to be fully considered. 

Such consideration, though, was already underway by this time. A second iteration of the Law Ministers' Conference was being proposed for some time since June 1959, at which the Law Commission Report was to form a key prong of discussions. While that Conference kept getting deferred, the Report was discussed on the floor of the Rajya Sabha in November 1959. The lengthy discussion only marginally featured the recommendation on juries. Only two speakers said anything; one seeing it as a slur on national character, while the other content with the recommendation. 

The latter, J.S. Bisht, found clear vindication of the stand in a recently concluded trial: "We recently saw what happened in the Nanavati case. It is sub judice, I am not referring to it. The verdict of the jury is there, I am not commenting on it, and the Judge has referred the case to the High Court on the ground that the verdict is perverse. It proves that. There it is amply before you, and therefore I submit, Sir, that it is high time that we abolished that system." (from the uncorrected debates of November 24).

This was not all. The deferred Law Ministers' Conference was finally held in Srinagar at the end of June, 1960. Trial by jury was again on the agenda (Item No. 13), and discussed in the Committee briefly (though for longer than in 1957). The meeting took stock of the status across states and ultimately concluded that while many states had already taken steps to abolish jury trials, the others "may examine the position and come to their own decision ...". In this brief discussion, the Bombay Law Minister, Shantilal H. Shah, could not stop from making a reference to the Nanavati case as well: "Recently there was a trial by jury of a member belonging to the Defence Services and the Judge called their decision perverse. (Laughter)."

Laughter and vindication. That is what the Nanavati case actually meant for the question of trial by jury by 1960, giving laughter and vindication to the large contingent of experts who had decried the retention of this foreign transplant. 

I would call it a question and not a debate because the writing was very much on the wall by this point. Even before the time Nanavati's case began, the only real question was when juries would go, not if; and it was still a question only because the Home Ministry was reluctant to endorse abolition since it was only in 1955 that it had sponsored reforms for making it work better. As the criminal procedure reforms continued in the next decade, it came as a surprise to nobody that a new proposed code had no place for trials by jury. 

Looking at the discussion as it progressed over the decade though these posts teases at the growing inevitability about the outcome. Paradoxically, a key prong for retaining juries in 1955 was the fact that they could, practically, be rendered redundant if state governments so desired. It would seem that this quixotic logic was at play even in areas which, on the face of it, showed a continued enthusiasm for juries. Thus, in West Bengal, the State Government had withdrawn jury trials in many important kinds of cases over the decade. It was done by designating special courts, assigning the cases to them, and prescribing that trials before special courts would follow the 'warrant' procedure which meant no jury was involved.  

The Law Ministers' Conference, the Law Commission, various State-Level Committees and Legislatures, and of course, Parliament; the question of what must be done with trial by jury was extensively discussed across multiple sites. The nature of the sites framed the conversation a certain way. It privileged the view of the expert—the bureaucrat, lawyer, or judge. 

Looking at it critically today, one wonders whether this presaged the outcome to a certain extent, given the overwhelming opinion of these experts was to distrust any involvement of the layperson in what was seen as a specialist discipline demanding exclusivity and expertise. Were they being unfair in casting the layperson as entirely unable to comprehend what transpired in court? KN Katju certainly thought so, being of the firm opinion that most cases were straightforward enough and an inability to simplify facts pointed to failings in the lawyers and judges rather than jurymen.   

Voices within the establishment for retention of jury trials were very much exceptional from the point at which the question first came under scrutiny. One can only wonder how many voices outside of the circle of expert opinions held other opinions. Remember, this was the first decade of independence. As Rohit De and Ornit Shani's works have shown, members of the public were by no means strangers to the additional burdens of citizenship and desired to be participants in nation-building. 

Thus, was it really as the Bombay Government stated it in December 1958, that the public was not keen on discharging jury duty? Or was it another case of a government overstating its case to retain control of state affairs and keep citizens distant and controlled? Perhaps there is an archive out there that helps to see this side of the story around jury abolition.

The End of Jury Trial in India — Part III: The Steady Decline of the Jury, 1955-1959

[This is Part III in a four-part series. Links to other parts here: Part I, Part II, Part IV]

The amendments made to the Criminal Procedure Code in 1955 abolished the post of assessors when it came to trials in Sessions Courts, retained the power of state governments to decide whether to grant the right of trial by jury before sessions courts, and also widened the scope for withdrawing the trial by jury in the High Court. Nevertheless, the amendments did not abolish the institution, which continued in various parts of the country. As it would seem, these measures did not eliminate the conversation around juries. By 1958, one year before the Nanavati Trial began, the Law Commission of India unequivocally expressed its views in favour of doing away with trial by jury. 

Given the middle path struck by the Government after a painstaking and laborious exercise just three years ago, how did the conversation around abolition restart so quickly? This post tries to explain this, and takes our story right up to the Nanavati Trial which took place in 1959. 

New Forums, New Personalities, New Conclusions

From 1950 till 1955, the work on judicial reforms within the central government appears to have been led by the Ministry of Home Affairs. For most of this period, the Ministry was helmed by the same man — KN Katju — and the nature of reforms piloted bore his indelible imprint. This included the preference to retain rather than abolish jury trials. In the middle of that year he was placed in-charge of the Defence Ministry and in his place came G.B. Pant; former premier of the United Provinces, during whose tenure a committee recommended abolition of jury trials in the  province.  

The Law Commission

For the latter half of the 1950s it appears that the Home Ministry was no longer in the driver's seat. After many years of mulling over the issue, on July 27, 1955, the Union Cabinet met and approved the proposal to set up an All India Law Commission (the other Cabinet proposal discussed that day, incidentally, was renaming Delhi's roads). 

The Commission was an all-star cast, lest we forget. It was chaired by the Attorney-General M.C. Setalvad, had sitting and retired Justices of the High Courts, and several senior advocates (some became judges of the Supreme Court later). The first item of the terms of reference for the Committee was to "review the system of judicial administration in all its aspects ..." It harked back to the letter floated by the Ministry of Home Affairs and the memo prepared by KN Katju in 1953, and suggests that everything was still on the table despite the amendments of 1955.

What is interesting here is that at least in the formative documents of the Law Commission, there is no explicit reference to the jury issue. It seems that it asked some states on how the jury trial was working (Bihar, for instance, which sent back a copy of its Jury Committee Report), but it is unclear whether any specific query on abolition was put forth. 

We do know, of course, that in Chapter 42 of the 14th Report published in 1958, the Commission dealt with the institution of trial by jury and recommended its abolition. Reading the Report, you get a sense that there were few supporters of the jury within the Commission, which at page 868 states: "Our task is to consider whether this exotic growth transplanted into India by British lawyers and jurists has worked well and should be continued." There is no mention of the demand for jury trials made by nationalist parties during the freedom struggle, and arguments in favour of juries are all seen as "theoretical". 

The test to decide whether juries should be retained was whether they worked in practice, and all evidence suggested that they did not. The issue of corrupt jurors received special mention, as well the expenditure in running such kinds of trials. Citing the experiences of Bihar, U.P., and Bombay (more on that below), the Commission concluded that the jury system in India had been a failure and should be abolished rather than remedied.     

The Law Ministers' Conference

The Law Commission's creation points to the emergence of a new site of study on issues of law reform in the latter half of the decade. It also appears to have been accompanied by the Law Ministry getting more directly involved with the matter of reforming judicial administration. 

As part of this, while the Law Commission was chugging away and preparing its report on the issue of reforms in administration of justice, for the first time in September 1957 a Law Ministers' Conference was convened in New Delhi. Organised by the Law Ministry, the Conference was attended by Law Ministers of all States (accompanied by Secretaries of the respective Law Departments), as well as the Union Home Minister of the day, G.B. Pant. 

Much like the Law Commission, the Law Ministers' Conference also does not appear to have jury trials as part of the initial agenda. The only mention appears to have occurred on the second day of the Conference, at the end of a long discussion on corruption in court administration. The Law Minister for West Bengal, S.S. Roy, lamented that the jury system is becoming "worse and worse" with people hanging about court to get engaged as jurors and receiving bribes. The Union Law Minister A.K. Sen, who was also from Bengal, chimed in assent with this view. Law Ministers from Kerala and Punjab remarked that they did not have juries, and finally the Home Minister replied to S.S. Roy, saying that they had "better abolish this system". 

No further discussion took place. However, curiously, in the summary of discussions prepared after the Conference, the discussion is recorded rather differently. It is not an offhand exchange between the Home Minister and the West Bengal representatives, but framed as a direct suggestion by the Home Minister to all states: "The Home Minister suggested that the States might consider the possibility of abolishing the system." 

The Summary of Conclusions changed things even further. It carried Agenda Item (6) under the heading "Checking of Corruption in the Administrative Machinery of Courts", stating that "The possibility of abolishing the jury system may be considered by the states in which the system is still in vogue." 

Just like that, one year before the Law Commission would publish its Report, the jury abolition issue was brought back into the judicial reforms conversation. One wonders whether it led to the specific focus on abolishing jury trials in the Commission's report too. 

The Law Ministers' Conference was quite the high-level meeting, so naturally the summary of discussions was circulated to states for their formal opinions and comments by the year end. Going through the responses received throughout 1958, we find that at this juncture, trial by jury was already practically non-existent outside of West Bengal and Bihar. Since abolition of juries seemed to carry full weight of the centre now, even West Bengal and Bihar wrote back saying that the proposal was "under consideration". By 1959, Bihar wrote an additional response to the centre, stating that the Patna High Court judges were also no longer in favour of the jury system.

Nanavati, and Trial by Jury in Bombay

I mentioned West Bengal and Bihar as bastions of jury trials in 1957-58. What about Bombay State? In the previous round of consultations lasting from 1950-54, we saw both Bench and Bar offer a spirited defence of the institution from various parts of the Bombay State, as it was then. By 1958, in no part other than Greater Bombay — the administrative name for the City — were jury trials still in operation across the entire state. How did this happen?

After passage of the Criminal Procedure Amendment Act in 1955, it appears that there was some internal review of the working of sessions trials across the state. The review condemned trial by jury in districts other than Greater Bombay largely because of the poor quality of jurors available. As a result, the Government in consultation with the High Court, withdrew jury trials from all districts other than Greater Bombay with effect from September 3, 1956. 

Another review of the sessions trials took place after reorganisation of Bombay State in 1956. To maintain uniformity of procedure, the Government decided (again in consultation with the High Court) to withdraw jury trials from Nagpur and five other newly added districts, with effect from September 2, 1957. 

I have not come across contemporary material to discern whether jury trials remained in Greater Bombay because they were a success. If anything, official papers suggest otherwise. After some deliberation and consulting with the High Court, in December 1958 the State of Bombay wrote to the Centre seeking permission to amend the law to abolish jury trials for Greater Bombay. That it came in the aftermath of the Law Ministers' Conference hints that the proposal was not entirely unrelated to the nudge from the centre. 

The State Government had not heard back on its letter by the time that Commander Nanavati infamously pulled the trigger on April 27, 1959. A reply came on September 17, while the trial was ongoing, advising the Bombay Government to wait till the proposals of the Law Commission had been finally reviewed. When the jury acquitted Nanavati next week, it did not prompt any fresh reappraisal or reconsideration on abolishing jury trials by the State Government. It waited, just as it had been advised to.