This article is written by Shivangi Tiwari, a second-year student pursuing B.A. LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with the Transfer of cases.

Introduction

The procedure to be mandatorily followed while pursuing a case is briefly dealt with under the Code of Criminal Procedure, 1973. Chapter XXXI of the Code contains the provisions related to the transfer of the criminal cases from Section 406 to 411. The main reason behind the incorporation of transfer of cases is that of delivering justice to people and to achieve the same, the provisions regarding the right to appeal is also provided. The overburden of pending cases and appeals results in delayed justice thus, it creates unrest in judicial processes. So to address this problem, certain provisions have been brought to transfer the criminal cases from one court to another. The right of appeal in the Supreme Court is available only in exceptional cases. As per the Code of Criminal Procedure, the original court of criminal appeal in the High Court.

Transfer of cases and appeals by SC

Section 406 of the Code of Criminal Procedure confers the power upon the Supreme Court to transfer cases and appeals. The Code grants the widest discretionary powers to the Supreme Court to transfer any case or appeal lying before the High Court to any other High Court of any state in the country in order to meet the ends of justice and fulfil the principle of natural justice. The application requesting the transfer of any case or appeal pending before the High Court can be moved to the Supreme Court by any of the following persons:

• Who is under the apprehension of unfair trial by the court; or
• Who is unable to find any proper justice being served to himself; or
• Attorney General or Advocate General of India.

The power granted by the Code under Section 406 to the Supreme Court is purely discretionary in nature and the applicant is under no obligation to conclusively establish that in case the transfer does not take place then fair justice will not take place and the applicant is only expected to reasonably substantiate the contentions made by him under the application he has submitted to the Supreme Court. The application under Section 406 of the Code is made by the interested party should always be in the form of motion supported by an affidavit or affirmation, except in the cases where the applicant is the advocate general or attorney general of the country.

The power of the Supreme Court to transfer the cases and appeals also extends to the transfer the cases from any subordinate court in the country where any matter is pending. However, the court where the case is pending can ensure that the Supreme Court, while transferring the case is taking all the measures to uphold fairness and principles of natural justice. The parties in any suit are always guaranteed the opportunity to bring to the notice of any court with appropriate jurisdiction that there are reasonable grounds which uphold the apprehension in the mind of the person that certain factors inhibit his right to a fair trial.

In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the transfer of a case on the contention that he was under the apprehension that he wouldn’t be able to engage a counsel in the court where a case against him was already pending in the case. However, the District Bar Association submitted an application assuring the court that a defence counsel from among the members of the Bar Association would be made available to the applicant. The Supreme Court held the application to be invalid dismissing the prayer for the transfer.

In Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, the court held that the power of transferring of cases with the Supreme Court does not extend to transfer of any contempt proceeding which is pending before the High Court.

The power of transfer of cases and appeals is not only discretionary but is also limited as Section 406 does not clothe the Supreme Court with the power to transfer investigation pending before one police station to another for the only reason being the forwarding of FIR to the court. In cases where the Supreme Court is of the opinion that the application made is frivolous in nature and is devoid of any substantial claim then it may order the party which came up with the application to pay compensation of not more than one thousand rupees to the party which opposed such application.

In Kaushalya Devi v. Mool Raj, the Supreme Court held that in cases where the application of transfer of the case is made but the Magistrate dealing with the case opposes the application by himself filing an affidavit then the transfer of the case, without any doubt in the complete interest of justice because in all such cases the essentials of fair and impartial trial are already put to peril which is signified by the personal involvement of the judge himself.

Grounds for transfer of appeal and cases

• To uphold the spirit of justice: The ultimate goal of any judicial system on the earth is the deliverance of justice and protection of the rights of every person. The courts are highly revered institutions of justice with people having high expectations of justice which is sought after by the aggrieved party. Therefore, the court is under high moral obligations for keeping the machinery of justice, equity and good conscience alive.
• Recommendations made by the superior judicial officers: The courts while deciding whether to transfer the cases and appeals from one court to another takes into consideration the inquiries and findings as revealed by the reports carried on by the senior judicial officers such as Chief judicial magistrate or any sessions judge.
• Upon request by the trial court: Where the court before which the matter is pending deems the case to be outside its scope of jurisdiction due to involvement of a substantial question of law which is outside its purview. It may request the higher judiciary to transfer the case.
• Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction over the subject matter of the case before it. In such cases of shared or limited juridical issues, the court trying the case has the liberty of transferring the case to the court which possesses the conclusive jurisdiction of trying the matter. This process ensures that complete justice has been done to the parties before the court.
• Differences between the party and the judicial officer: In circumstances where there is already a presence of differences between the judicial officer and any of the party the chances of an unfair and partial trial being carried out are relatively higher. Therefore, the party apprehending such consequences of carrying on of the trial is granted the opportunity by the judicial system to apply for transfer of the case.
• Infringement of principles of natural justice: Where the proof of continued contravention of the principles of natural justice by any court or judicial officer is rendered by a party to the Supreme Court, then in order to uphold the principles of natural justice, the court may order the transfer of the case.

The very purpose of Criminal law is the free and fair dispersal of justice which is not influenced by any extraneous considerations. Section 407 of the Code of Criminal Procedures enables the party to seek for transfer of case anywhere within the state while Section 406 of the Code enables the party to seek transfer of the case anywhere in the country.

Transfer of cases and appeals by HC

Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases and appeals.

Circumstances in which HC may order the transfer of a case or appeal

The High Court has the authority to transfer the cases when it is satisfied that:

• The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian Constitution can not be exercised by any of the party to the suit if the case is tried by any of the courts which is subordinate to it;
• Certain questions pertaining to the present matter in the court are of unusual difficulty;
• The transfer of the appeal or the case is made inevitable by any of the provisions under the Code;
• The order of transfer will be in the interest of the general convenience of the parties or witnesses involved in the suit.

Orders that the High Court can pass

The High Court on being satisfied with the presence of the above-mentioned grounds can order any of the following:

• The offence which is inquired into or tried by any Court subordinate to it be inquired by any other court which is inclusively under both  Section 177 and Section 185 of the Code is not qualified but is otherwise competent to inquire into or try offences like the ones which are in question;
• Where a particular case or appeal is pending before any criminal court which is subordinate to it to any other criminal court which is having equal or superior jurisdiction in comparison to the High Court;
• The particular case be laid down before the court of Sessions for hearing;
• The particular case or appeal be laid down before the High Court itself.

At whose instance the powers of transfer are exercised

The High Court exercises its power of transfer of cases at the following instances:

• When the lower court submits the report for transfer of an appeal or case to the High Court;
• Where the interested party lays before the High Court, an application requesting the transfer of a case or appeal;
• The High Court in its own discretion can transfer a case or appeal if it is satisfied with the fact that it would be in the best interest of the parties to the suit.

However, the High Court while transferring a case must be mindful of the fact that no application of transfer of the case from one criminal court to another is made in the same sessions division unless an application for the transfer of the case has been made to the sessions court and the same has been rejected by him.

Procedure to be followed

Subsection 3 to Subsection 5 of Section 407 of the Code of Criminal Procedure lays down the procedure which has to be followed by the person who is making the application for the transfer of appeals and cases by him.

• Subsection 3 of Section 407 of the Code provides that the application for the transfer of cases to the High Court by the applicant shall be made by motion which shall be supported by an affidavit or affirmation, except in the case where the applicant is the Advocate General of the State;
• Subsection 4 of Section 407 of the Code provides that where the application for the transfer of a case or an appeal is made by an accused person, the High Court has the authority to direct him to execute a bond with or without surety for the payment of any compensation which may be ordered to him by the court;
• Subsection 5 of Section 407 of the Code provides that every person who makes an application for the transfer shall give to the public prosecutor in writing, a notice to notify his intention for making such an application. The notice should be accompanied by the grounds on which the application is made. This Section also instructs the Courts not to make any order on the merits of the application so submitted by the person, unless at least a time period of twenty-four hours has elapsed between the making of such a notice and hearing of the application. 

Stay of proceeding to the subordinate court

Subsection 6 of Section 407 of the Code contains provisions relating to the stay of proceedings which are going on in any subordinate court. The provision states that where the application for the transfer of cases from any subordinate court is lying before the High Court. The High Court, may if it deems fit in the interest of justice, stay the proceedings in the subordinate court on such terms which it finds appropriate. However, if such an order is made by the High Court, it should not have any impact on the sessions court’s power to remand which is guaranteed to it by Section 309 of the Code.

Where the application is dismissed by the High Court

Subsection 7 of Section 407 of the Code contains provisions regarding the cases where the High Court dismisses the application made to it under subsection 2 of Section 407 of the Code. If the High Court finds that the application for the transfer of appeal or case was vexatious and frivolous, it may order the applicant to pay a compensation of an amount not exceeding one thousand rupees to any person who had opposed the application made by the applicant. The court in such cases decided the compensation keeping in view, the facts and circumstances of the case.

Saving

Subsection 9 of Section 407 of the Code is the saving clause and it provides that nothing contained under Section 407 of the Code shall have any effect on the orders which are passed by the Government of India under Section 197 of the Code which prevents the courts from taking cognizance of any case which involves the criminal charges against any public servant unless a previous sanction has been obtained by the court from the competent authorities.

Transfer of cases and appeals by the sessions judge

The Sessions judges are also conferred with the power to transfer cases and appeals by the Code under Section 408.

• Subsection 1 of Section 408 provides that whenever a Sessions Judge finds it expedient to transfer a case to meet the ends of justice. He has the authority of transferring such cases from one criminal court to another criminal court within his sessions division;
• Subsection 2 of Section 408 provides the instances on which the Sessions court can transfer the cases. The Section provides that the authority to transfer the cases with the Sessions Court can be exercised by it at the instance of the report in this regard submitted to it by the lower court, application in this regard submitted by the interested party or the court may exercise the power at its own discretion;
• The provisions under subsections (3), (4), (5), (6), (7) and (9) of section 407 shall be made applicable to the Sessions Judge while making any order in regards to the power vested on it by Subsection 1 of Section 408 in the same way as they are made applicable to the High Court while it exercises the provisions mentioned under subsection 1 of Section 407 of the Code.

Withdrawal of cases and appeals by Sessions Judges

Section 409 of the Code of Criminal Procedure contains provisions regarding the power of the Sessions Court to withdraw the cases and appeals.

• Subsection 1 of Section 409 provides that the Sessions Judge, not only has the power to withdraw any case or appeal but also has the power to recall any case or appeal which he had earlier transferred to any Additional Sessions Judge or Chief Judicial Magistrate who is subordinate to him;
• Subsection 2 of Section 409 provides that the power of recalling the cases by the Sessions Judge from any Additional Sessions Judge can be exercised by him at any time before the commencement of the trial of the case or hearing of the appeal before the court of Additional Sessions Judge;
• Subsection 3 of Section 409 provides the course of action which can be followed by the Sessions Court if it exercises the power vested on it by Subsection 1 and 2 of Section 409. Accordingly, after the recall of an appeal is made by the Sessions Judge, he may either try the case or hear the appeal on his own, or again transfer the case or the appeal to some other court in accordance with the provisions of the Code.

In Surendra Kumar vs Vijayan, the court held that the authority of transferring such cases from one criminal court to another criminal court within his sessions division conferred on the Sessions Judge by Section 408(1) of the Code is an independent judicial power and is not subject to any bar provided under Subsection 2 of Section 409.

Withdrawal of cases by Judicial Magistrates

Section 410 of the Code of Criminal Procedure contains provisions regarding the withdrawal of cases by Judicial Magistrate. According to the Section:

• Subsection 1 of Section 410 of the Code grants the powers to the Chief Judicial Magistrate to transfer any case from any Magistrate subordinate to him as well as the power to recall any case which he had earlier transferred to any Magistrate subordinate to him. When the Chief Judicial Magistrate recalls a case, he has the authority to himself hear and try such case or he may refer the case to any other Magistrate who is competent to hear and try the case;
• Any Judicial Magistrate has the authority to recall any case which he had transferred to any other Magistrate under Section 192 of the Code and may inquire into the case on his own.

Making over or withdrawal of cases by Executive Magistrates

Section 411 of the Code contains provisions about the withdrawal of cases by the Executive Magistrate. The Section provides that any District Magistrate or Sub-divisional Magistrate has the authority to:

• Withdraw any proceedings which started before the court to any Magistrate who is subordinate to it for the disposal of the case;
• Withdraw or recall any case which he had earlier transferred to any Magistrate subordinate to it and dispose of the proceedings of the case himself or refer the same for disposal to any other competent magistrate.

Conclusion

Transfer of cases does not alter the nature of the trial or relief which is provided to the parties to the suit. It is a mechanism ensuring the parties are rendered justice. The authority of transferring of criminal cases from one court to another is conferred upon Supreme Court, the High Court and the Sessions Court. However, the powers with each of the institute differ. If the party to the suit enforces their rights guaranteed to them under the Sections and it is found that the intention of the party is vexatious then the courts have the discretion of ordering compensation to be paid by such person to the person who has opposed it. The sum of compensation that the court may order differs from courts to courts. Cases can be recalled or withdrawn by the Sessions Judge, Judicial Magistrate and Executive Magistrate. The order made under these sections has to be recorded with the reasons for making these orders. There should be reasonable apprehension that justice would not be met by the court under jurisdiction then only the case can be transferred.

References

• https://blog.ipleaders.in/transfer-of-case/
• https://acadpubl.eu/hub/2018-120-5/3/234.pdf

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.