Introduction
The Indian judicial system consists of the Supreme Court at the national level, High Courts at the state level and district and sessions court at the district level. Supreme Court and High Courts are often termed as constitutional courts as the same are established as given under the Constitution of India[1] and their jurisdiction is marked out. At the district level, in civil matters, it is the District Courts that handle almost every kind of matter except in cases their jurisdiction is specifically ousted like in matters for which the respective laws provide for Tribunals; in criminal matters, it is the Sessions Court which decided the criminal cases.
Even though every court has its jurisdiction earmarked either under an Act or through judicial precedents, the provisions for transfer of cases can be found in both Code of Civil Procedure, 1908 and Code of Criminal procedure, 1973. The Supreme Court also has been vested with the widest discretionary power to transfer cases from one court to another within the territory of India.
There can be several reasons for transfer of cases from one court to another. Some of the prominent ones are:
- The justice may not be delivered properly
- Existence of a substantial question of law
- Involvement of constitutional issues in the matter
- Lack of necessary jurisdiction
- Recommendations by superior judicial officers
- Requests by trial courts
- Differences or conflict of interest between parties and judicial officers
Provisions for Transfer of Cases under Code of Criminal Procedure, 1973
Under the Code of Criminal procedure, 1973 which is the procedural law for criminal cases, Chapter XXXI provides for the Transfer of Criminal Cases. The Chapter covers Section 406-412.
The provisions are as:
1. Section 406 – Power of Supreme Court to transfer cases and appeals
The provision provides for the transfer of cases and appeals by the Supreme Court from
- one High Court to another OR
- one criminal court subordinate to one High Court to a criminal court of equal or superior jurisdiction subordinate to another High Court
if it considers it in the interest of justice. Such an application should be made by any of the following:
- Attorney-General of India
- Advocate General of the state party to the case
- Any other party involved or interested in the case, in which case it must be supported by an affidavit or affirmation
In case a person is found filing a fraudulent application under the Section, the Supreme Court is empowered to pass an order for compensation up to Rs. 2000 to be paid to any party which opposed the transfer petition.
In Suman Gambhir v. State of Rajasthan & Ors.[2], the Supreme Court held that since both the complainant and accused reside in Delhi, a civil suit between the parties is pending at Delhi and State has no objection to the transfer of case from Rajasthan to Delhi, the transfer petition shall be allowed.
Likewise, in Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v. State of Punjab & Anr.[3], the petitioners filed a petition for transfer of a criminal case against Petitioner 1 and his brothers under Sections 363-A, 366 and 120-B before the Court of learned Magistrate, Phillour, Jalandhar, Punjab, to Court of learned Chief Judicial Magistrate, Barpeta, Assam. The ground was the grave apprehension of threat to life as Petitioner 1 and 2 ran away to get married. The Supreme Court, finding it in the interest of justice and convenience of parties, transferred the case as petitioned.
In Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr.[4], wherein Transfer Petitions (Crl.) Nos. 254-55 of 2004 were decided along with that of No. 89 of 2005, the Supreme Court held that the transfer sought by the applicant on the grounds of possible inability to engage a defense counsel in the concerned court cannot be allowed when the District Bar Association submits an affidavit that the applicant will be provided, legal counsel.
2. Section 407 – Power of High Court to transfer cases and appeals
The power of a High Court to transfer cases and appeals is exercised when:
- A fair, just and impartial trial won’t happen
- Some question of an unusual difficulty is involved or arises
- Such an order is required under some provisions of the Code
- The convenience of the parties and witnesses necessitate it
- Expedient for the ends of justice
However, in Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors.[5], the Supreme Court rejected the petition for the transfer of criminal cases from Jammu to Srinagar on the grounds that most of the witnesses belong to Srinagar. The Court held that since all of the witnesses from Jammu have been examined, the case need not be transferred.
The case or appeal under this Section can be:
- Transferred from one Criminal Court subordinate to the High Court to another Criminal Court of equal or superior jurisdiction
- Committed to a Court of Sessions
- Tried by the High Court itself
In Pal Singh & Anr. v. Central Bureau of Investigation & Ors.[6], the Supreme Court held that a High Court can transfer a criminal case or appeal from one Sessions Court of a district under its jurisdiction to Sessions Court of another district under its jurisdiction. Inter-state transfer of cases is not allowed. Also, when a case is in the final stages of hearing and the majority of the witnesses have been examined, the transfer is not proper.
The transfer application, along with affidavits or affirmation can be made by/through:
- Report of lower court
- An interested party
- High Court on its own
In Nirmal Singh v. State of Haryana[7], the Supreme Court set aside the order of the Punjab and Haryana High Court transferring a criminal case from Sessions Judge of Ambala to that of Chandigarh, on its own. The reason was that neither a notice was served to the parties nor they were given an opportunity to be heard. Also, many of the accused argued that they will have to incur extra expenditure like engaging legal counsels.
If a case is to be transferred from one Criminal Court to another within the same Sessions Division, the transfer application can be filed in the High Court only if such application has already been rejected by the Sessions Judge.
The High Court shall follow the same procedure for trial which would have been followed had the case or appeal was not transferred.
3. Section 408 – Power of Sessions Judge to transfer cases and appeals
Section 408 empowers a Session Judge to transfer a case or appeal from one Criminal Court to another Criminal Court in his/her Sessions Division if it is expedient in the interest of justice.
The Sessions Judge may act
- On its own
- On report of a lower court
- On application of a party
Some provisions of Section 407 are applicable to orders under Section 408 as well and these are:
In case a transfer application is made by the accused, the High Court or Sessions Judge, as the case may be, may order him/her to execute a bond, with or without surety. Also, the accused shall furnish a written notice to the Public Prosecutor regarding such application along with its grounds. No order can be made on the merits of the application unless 24 hours have elapsed between furnishing the notice and hearing of application.
In case a person is found filing fraudulent transfer applications, he/she may be ordered to pay compensation up to Rs. 1000 by the High Court or Rs. 250 by the Sessions Judge, to any party who opposed the application.
None of the provisions of Section 407 or 408 shall affect the Government’s orders u/s 197.
4. Section 409 – Withdrawal of cases and appeals by Sessions Judge
The provision empowers the Sessions Judge to either withdraw or recall a case or an appeal made to any Assistant Sessions Judge or Chief Judicial Magistrate who are subordinate to him/her. However, in case of an Additional Sessions Judge, the same can be done only if the trail has not started. The Sessions Judge can try the case or hear the appeal in his/her own Court or make it over in accordance with the provisions of this Code to another Court.
In Subrata Pal v. Ratna Gope & Anr.[8], the Agartala Bench of Gauhati High Court stated that if a case or an appeal as the case may be is to be recalled from the learned Additional Sessions Judge’s Court while the same has started being tried or heard, the Sessions Judge must report to the High Court with the reasonings for such recalling under Section 407(2).
5. Section 410 – Withdrawal of cases by Judicial Magistrate
It empowers the Chief Judicial Magistrate to withdraw or recall any case made over to any Magistrate who is subordinate to him/her and try/inquire into such case himself/herself or refer it to any other Magistrate competent to try/inquire.
It also empowers a Judicial Magistrate to recall a case made over to any other Magistrate under Section 192(2) of CrPC, 1973 and try/inquire into it himself/herself.
In Mehfoozkhan & Anr. v. R. J. Parakh & Anr.[9], the Bombay High Court held that the power of a Judicial Magistrate under Section 410 is not to pass just an administrative order, but a judicial order as well. The use of words withdraw or recall is identical to word transfer. It was also held in the case that the State being an important party in all the criminal cases, a petition for transfer of a criminal case can be filed by the State as well if compelling reasons exist.
6. Section 411 – Making over or withdrawal of cases by Executive Magistrates
Just like Section 409 and 410, Section 411 empowers the Executive Magistrates to withdraw or recall any case made over by him/her to a subordinate Magistrate and dispose of such proceeding in his/her own Court or make it over to another subordinate Magistrate.
7. Section 412 – Reasons to be recorded
Section 412 states that wherein a transfer order is made under Section 408/409/410/411, the reasons of the same should be recorded. It ensures that no transfer order is made without fair, just and compelling reasons.
Conclusion
A study of the provisions of transfer of cases under CrPC, 1973 clearly shows that almost all courts, starting from the Supreme Court to the lower courts have been given adequate powers to transfer cases and appeals. And all thanks to judicial precedents, the grounds for such transfers keep on being updated.
[1]Article 124 and 214, Constitution of India
[2]Suman Gambhir v. State of Rajasthan & Ors., (2004) 13 SCC 365
[3]Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v. State of Punjab & Anr., (2006) 9 SCC 714
[4]Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr., (2007) 11 SCC 640
[5]Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors., (1982) 1 SCC 501
[6]Pal Singh & Anr. v. Central Bureau of Investigation & Ors., (2005) 12 SCC 329
[7]Nirmal Singh v. State of Haryana, (1996) 6 SCC 126
[8]Subrata Pal v. Ratna Gope & Anr., (2002) 2 Gauhati Law Reports 372
[9]Mehfoozkhan & Anr. v. R. J. Parakh & Anr., 1980 Mh. L. J. 646
This article is authored by Jhanvi Gupta, Third-Year, B.A. LL.B student at Symbiosis Law School, Pune
Also Read – Can a High Court Exercise Extra Territorial Jurisdiction in Granting Anticipatory Bail?
