transfer of case

In this article, Rohit Upadhyay pursuing M.A, in Business Law from NUJS, Kolkata discusses the procedure for transfer of a case from one court to another.

Introduction

The judiciary has been paramount institution for determination of any legal dispute. The judiciary has been a watch dog to keep an eye on the legislature and executive authorities to control their arbitrary actions and to keep a check on their activities which may be either driven by their whimsical or by any hidden interest. The judicial authorities are vested within various courts and at many levels as deemed to be proper by the respective High courts. The Indian judiciary has a huge extravagant burden on its shoulder of pendency. In a broader classification, the trails could be separated in two classes namely-

  1. Civil law and
  2. Criminal law.

Civil Law

The Civil laws are the laws which relate to disputes between individuals, individual and a company, individual and an organization, or organization against any organization. The scope of the civil law is a wrong doer and against such wrong doing the court may award penalties or cost to the wrong doer and compensation to the victim who has suffered any unwarranted loss due to such behavior. In civil law, the burden of proof is leveled at the preponderance of probability, which means that both the parties of the litigation have to make their best possible effort to establish their case and then based on the level of prudence of the pleading the court would determine the case.

In civil law a case is instituted by the plaintiff against the defendant and ends up with a judgment. Either party who may be aggrieved by the judgment of the court may prefer and appeal against the order passed by the court. The punitive action of the civil law would in the form of compensation. The example of civil laws are Indian contract act, 1872, Civil procedure Code 1908.

Criminal law

Criminal wrongs are those which possess the potentiality of damaging the society at large. Generally, criminal acts are those acts which have an overall impact on the society and influence a major share of the society with its occurrence. The criminal law covers all the offences and crimes under different laws and statutes. The criminal case against an individual may be instituted by a First information report (F.I.R) or by presenting a private complaint against a person. Whenever a complaint is preferred to any magistrate he may after taking cognizance and observing any substance in the complaint may issue necessary instruction for further investigation and fact finding of the case. The burden of the proof in such criminal cases lies on the prosecution which is here referred as the state to establish its case far beyond reasonable doubt against the offender. In case if the prosecution fails to do that the benefit of doubt would flow towards the accused. The party which may be dissatisfied by the judgment of the court may approach the competent superior authority to file an appeal against the order of trail court. The punitive consequence of criminal law would be fine or imprisonment of may be even both the criminal court also have superior jurisdiction to order the offender to pay the victim against his crime as under victim compensations scheme. The example of criminal laws are Indian Penal Code, 1860, Criminal procedure code, 1973, Narcotic drugs and psychotropic substance, 1985

Objective for transfer of cases in courts

The entire judiciary is viewed with utmost respect and with an expectation that the judiciary would do very fair and equitable justice to the person coming before them or pleading for genuine redressal of any complaint of grievance. The court should always maintain a fair view that court should not only do fair justice but the justice should be pronounced in such a manner that a clear message should be made to everyone that justice is made. The judiciary is the most sanctified body to deliver justice and has always maintained a very strict view regarding fairness in trail procedures and trail fairness. So in order to protect the reputation of the courts and the maintain high order of moral standards between the members of judiciary the code of Criminal Procedure and the civil procedure code have enough reasonable grounds to transfer cases from one court to another court.

The main intention of delivering justice or to decide a matter is to address a public sentiment although there are various provisions regarding appeal. But such practices would impart tremendous pressure on the mechanism of judiciary and the judiciary would further be burdened with more pendency and delayed justice to all which may consequently create more dispassion and unrest about judicial processes. So to address all such burning issue the statutes already provides certain provisions regarding the transfer of cases from one court of trail to another court of trail.

The hierarchy of the courts is followed as per the table drawn below.

Power of Civil courts to transfer cases

The civil procedure code, 1908 is a concise legislature to determine the litigation aspect and to determine the course to be adopted for trial. Section 15 of the C. P. C, 1908 provides that the every case should be filed in the lower court competent to try that matter. This avoids absurdity regarding the jurisdiction of maintenance of claim and place of filing claim.

Section 22 of the C.P.C 1908- Power to transfer suits which may be instituted in more than one Court.

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When a trail is lying pending before a court and the same jurisdiction is shared by many other territorial or other court the defendant who may have objection to the jurisdiction of the place of trial of the court may after moving an application to all the relevant parties of the legislation may be given with an opportunity to be heard and argue and then the court may determine the merit of the case and order further instructions. In civil cases when the case is for obtain a specific possession of a property it is preferred to file the case within jurisdiction of the court under which the property or any other achievable of the defendant are available.

Section 23 of the C.P.C 1908- To what court permission lies.

This section of C. P. C 1908  deal with the provisional part used to exercise this right hand how the application regarding  such transfers be made and whom to be made with such applications. As per the statute the application may be preferred to any court which is immediate superior to the trial court or the appellant court of that trial court. Subjected to following circumstances: –

When the appellant court is same:- when the suit is to be shifted or transferred to  court which have same court of appeal or under same subordination such transfer application would be preferred to appellant court.

When the appellant courts are different: – when both the courts of trial lies under different court of appellant jurisdiction. Then the application would be preferred to the high court under which both the courts are subordinate to.  The High court after observing the substance of the complaint would decide the application and dispose it off accordingly.

When both the trail court are under different High courts:- In a case where both the litigant parties claim under the court which have different High court  jurisdiction. Then such an application shall be preferred to the High court which has jurisdiction over the court in which the case was firstly instituted.

Power of criminal courts to transfer cases

The Supreme Court is the highest court of criminal appeal but the right to prefer an appeal to the Supreme Court lies in some exceptional cases. The original court of criminal appeal is the High Court as per the Code of Criminal Procedure. The Supreme Court has the largest authority regarding the administrative functions of all its subordinate court.

Section 406 Cr. P. C 1973 – Power of Supreme Court to transfer cases and appeals

The Supreme Court is vested with the widest discretionary power to make any such order to transfer any specific case or appeal or any matter lying pending before one high court to another high court to meet up the end of justice and satisfy the principle of fair justice. The application to transfer such case from one High court to another high court would be moved by any person who is under apprehension of any unfair action or he may not find proper justice for him or Attorney General of India. The provision made under section 406 of Cr. P. C majorly relies upon the discretion of the Supreme Court. The applicant is not under any obligation to establish conclusively that in absence of this transfer the interest of justice regarding him would fail. The applicant will have to reasonably substantiate his contentions regarding the application. The Supreme Court is not only vested with the authority to transfer files form one High court to another High Court. The Supreme Court also has authority to the transfer any case from one court to another court which is in subordination to the Supreme Court. Any objection if arose by the court under which the matter is lying pending. Although the trail court may ensure the Supreme Court about maintaining the principle of fair and equity, but the Supreme Court would take all reasonable measure to transfer that case to some other court which may be either to the court of same competence of may be court lower or higher competence.

Section 407. Cr. P. C 1973- Power of High Court to transfer cases and appeals.

The high court is also vested with the similar authorities to transfer a case from one court of its sub ordinance to another court of its sub ordinance or the high court may even the try the case by itself. The following are the ground on which an application to transfer the case could be made to the high court.

  1. When the court could reasonably apprehend that the fairness of the trail would be prejudiced by the trail if conducted with the same court which has been trying the case currently.
  2. When the high court is of the opinion that the trail of the case may involve decision of some questions which are substantial question of law and could only be dealt by the high court in expedite manner.
  3. The High court may take into consideration of the convenience of the parties for such to meet up the end of justice and towards the expedience of justice for both the parties.

The High court after receiving any such application from the applicant the court may even if require conduct an enquiry and then decide whether such transfer is in the interest of justice or it is filed with an intention to defeat the justice. If the grounds of filing such application are found to be false, frivolous or vexatious the court would dismiss the application. The Attorney general of the state may also file application of such transfer to the High court with an affidavit which on oath would again affirm the contents of the application. The trail court can also refer to the High court any such cases which may need transfer from one court to another to meet the ends of justice.

Section 408. Cr.P.C – Power of Sessions Judge to transfer cases and appeals.

In sub ordinance to the High court the session court also have vested authority to transfer one from one court to another under his jurisdiction within his session division.  This order may be made b y the court for better delivery of justice and settle the sentiment of the victim. An application shall be preferred on following grounds:-

  1. When the court is reasonably satisfied that the subordinate court is unable to deliver justice to the aggrieved. The sessions court by his own accord may take all reasonable measure for expedite delivery of justice by the court.
  2. The application could be filed by the lower court to the sessions court which may demand such transfer or by the own accord of the court. Or by the application moved by the parties involved within that course, or the court may even consider the report of the lower court which favors or recommends such transfer from o0ne court to another. To deliver justice.
  3. The applications which is made to the sessions court should be in consistence with the provisions of 407 (3) (4) (5) (6) (7) and (9). Before deciding any such application of transfer the copy of the application should be provided to the public prosecutor and with a reasonable opportunity to argue on the application filed by the applicant. If in case this exercise is not performed in the same manner the application becomes void. No further actions could take place from thereof.

Section 409 Cr. P .C Withdrawal of cases and appeals by Sessions Judges.

Further in section 409 Cr. P. C the Sessions judge is vested with additional administrative functions regarding transfer of case from one court under his subordination to another court under his subordination under following circumstances:-

  1. The Sessions judge can withdraw cases and appeals from any of the judges under his subordination. And after obtaining such transfer file from the assistant Sessions court or from the Court of Chief Judicial Magistrate.
  2. The Sessions judges also have authority to recall or withdraw any appeal which is lying pending before any Add. Sessions judge. After obtaining such file from transfer the Sessions court may order it to be made over to any other Add. Sessions judge.
  • When any of such withdrawal affected under sub section 1 and 2 of section 409 Cr.P.C. the sessions judge may personally keep the matter with himself and then further the case would be tried in his court or may act in accordance to the provisions of this act.

Section 410 Cr.P.C Withdrawal of cases by Judicial Magistrates.

The Chief judicial magistrate or the Chief metropolitan magistrate are vested with the authority to withdraw any case from any judicial magistrate either first class or second class which is in subordination to him and may inquire into the substance of the trail conducted by the magistrate subordinate to him or may even transfer the trail from that judicial magistrates court to his court. In furtherance the Chief Judicial Magistrate can also authorize or further refer such inquiry to any magistrate under his subordination.

Any judicial magistrate may under the light of section 192(2) of the Cr.P.C can enquire into any case which is made over to him from any other judicial magistrate.

The grounds on which the cases can be transferred

The following are the grounds on which a case could be transferred from one court to another court.

  1. To meet the ends of justice :- It is the utmost duty of the court to take all such measures to meet up the ends of justice and to pronounce the judgement which should also send a good message in the society that justice was not only done it was done with an impact that it appears that justice is done. The court is the most trusted and sacred institution. And every person holds a very high relative position and respect for court and its decisions. So the courts have extra moral obligation to keep the spirit of trust and confidence alive within this machinery. This ground to meet the ends of justice have a vide connotations it could be easily understood that this authority would have high degrees of discretionary powers. Which could be used in accordance with the factual quantum to provide justice to all the subject litigants. The factual matrix of every trail weather civil or criminal proceedings is quite different so in order to ascertain a pre-managed situation for dealing may not ensure a fair trial or may even end up causing irreparable loss to the interest of the litigants. Therefore the court has been vested with such discretionary authority to determine such question regarding transfer of court.
  2. As per the inquiry report of any superior judicial officer such as any Chief judicial magistrate or any sessions judge the trail must not be conducted by a particular magistrate or any other officer such a report shall also be deemed to be a valid ground for such transfer of a case from one court to another.
  3. The trail court deems it fit to be transferred from its purview or the determination of the trail may involve such substantial question of law. Determining substantial question of law far above its jurisdiction would render the complete trail fruitless.
  4. The court have a limited jurisdiction over the subject matter of the dispute in such limited or shared juridical issue the court trying the matter will have a liberty to transfer the case to the court which have competent jurisdiction to try that matter conclusively so that the complete trail could not be failed because of lack of complete jurisdiction.
  5. Mutual collision between the party and other judicial officer. The possibility of corruption is no stranger to the judicial fraternity. in such cases to avoid the failure of interest of the actual aggrieved party between the litigants the court provides reasonable opportunity to the party which may have such apprehension.
  6. The judicial officer being engaged or involved in the litigation by some or the other. In such scenario the litigant parties have complete freedom to approach the authorities for avoiding any collision of interest when capitalised through any characterised persons.
  7. The judicial officer may be made as witness. If any judicial person has been made as a witness to any trail this surfaces the end of the ability of that person to conduct the trail. Such actions may append breach of ordinary prudence of fair trail and may impeach the interest of justice.
  8. When the court or any judicial authority is working in contravention to the principles of natural justice. Any if such breach when reported to the authority continues to happen the aggrieved party would be free to take shelter for preferring transfer of case.
  9. Any mutual disturbance or unethical relationship between the lawyer or the judicial officer may also prefer an application of transfer of case from one court to another.

Conclusion

The transfer of case from one court to another may not change the nature of the trail or the relief nor does it changes the subject position but with the addition of such provisions the legislature and the judiciary imparts a huge impression on the subject about the principle of equity and good conscience. Transfer of cases from one court to another would also ensure that the litigant parties are assured to the justice done to them.

 

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3 COMMENTS

  1. It is sad to know the situation of Dilraj sing.
    25 years’ time in courts for a single issue is almost more than abnormal and justice is delayed than justice is denied. if you narrate ur issue so that I can guide you to my experience were to approach and how?
    however my advice is only advice and legal help is always harbor you in a safe position.
    despite,, above if you lose hopes on judiciary than start writing on your experiences fully to known rest citizens who are an innocent and running pillar to post for years together having a maritorious case in hand.

  2. No justice at all .lower court , session court judges follow the instructions of senior judges .if some known to senior judge .he will be the king .no one can get justice if defendant’s frd will be a justice .we are suffering from last 25 years .moving around the courts to get justice.but all the time failed just because other party is known to some justice.now where to go ,?? In India 🇮🇳 No justice .

  3. What if organisation transferred the case because Judge is a known person and can bribe the judge ? You know Indian system works only on corruption and blame game business just because they are getting paid.

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