Code of Criminal Procedure lays down the procedure to be mandatorily followed while pursuing a case. Transfer of criminal cases is dealt in the Chapter XXXI of Code of Criminal Procedure,1973 from Section 406 to 412. The intention of delivering the justice to people addresses the various ways provisions regarding appeal. The judiciary is burdened by more pendency and delayed justice and it creates unrest judicial processes. So to address this problem, certain provisions has been brought to transfer the criminal cases from one court to another. The right prefer for an appeal in Supreme Court lies in only exceptional cases even though it is the highest court of criminal appeal. As per the Code of Criminal Procedure, the original court of criminal appeal is the High Court.
Section 406 to Section 412 of Code of Criminal Procedure,1973
Section 406 : Transfer of cases by Supreme Court
1. If it appears to Supreme Court that an order made under this section is expedient to meet the ends of justice then it may direct such case to be transferred from one High Court to another High Court or from one Criminal Court to another which is subordinate or of equal jurisdiction.
2. The Supreme Court can act under this section only on an application provided by the Attorney-General of India or Advocate General of State and it should be supported by an affidavit or affirmation.
3. When any application under this section has been dismissed then the Supreme Court is in the opinion that the application was vexatious then it may order the applicant to pay compensation to the person who has opposed and the sum may not exceed thousand rupees.
Section 407 : Transfer of cases by High Court
1. When it appears that :
2. Fairness of the trail would be prejudiced if it conducted in the court
3. It may involve decisions of some questions which may cause unusual difficulty.
4. It may take into consideration of the convenience of the parties or witnesses.
5. High Court may act either on report of a subordinate court or on an application by the parties
Provided that no application can be made for transferring a case from one court to another of same level unless such an application has been rejected by Session Judge.
3. The application made under sub section (1) has to be supported by a motion and if the applicant is Advocate-General then it has to be supported by affidavit .
4. If the applicant is an accused then the High Court may direct him to execute bond with or without the sureties for the payment of compensation under sub-section (7).
5. The accused has to apply his application to the Public Prosecutor with the grounds on which is made and no order shall be made unless 24 hours has been elapsed between the giving and hearing of the such application.
6. High Court also has power to transfer a case from one subordinate court to another and the proceedings in the subordinate court shall be stayed as the High Court may think.
Provided that such stay shall not affect the power of Subordinate Court under Section 309.
7. When an application under Sub section (1) is dismissed then the High Court think that the application was vexatious then it may order for compensation to the person who has opposed and the sum shall not exceed 1000 rupees.
8. When the case is transferred, the trail should be followed in the same procedure that would have been followed if the case was not transferred.
9. Nothing in this section shall affect the order under section 197 of the Government.
Section 408 : Transfer of cases by Sessions Judge
1. When an order appears expedient to Session Judge then he may order that case to be transferred from one criminal court to another in sessions division.
2. Sessions Judge may act upon application of party or report of Subordinate court.
3. The provisions of sub section (3),(4),(5),(6),(7),(9) of Section 407 shall apply to order of a Sessions judge except the 1000 rupees in sub section (7) is substituted with 250 rupees.
Section 409 : Cases withdrawn by Session Judge
1. Sessions Judge has power to withdraw or recall any case or appeal that has been made.
2. Sessions Judge may recall any case that has been commenced before Additional Sessions Judge.
3. Sessions Judge may either try the case in his own court or transfer it when it withdraws or recalls the case under sub section (1) or (2).
Section 410 : Cases withdrawn by Judicial Magistrates
1. Any Chief Judicial Magistrate shall withdraw or recall a case which is made to his subordinate court and he shall inquiry into or refer an inquiry to a Magistrate competent to it.
2. A case can be recalled by Judicial Magistrate under sub section (2) of Section 192 to any other Magistrate or inquire it himself.
Section 411 : Cases withdrawn by Executive Magistrates
Any Sub-Divisional Magistrate or District Magistrate who are Executive Magistrate can :
1. Make over for disposal of any case commenced before him or any Magistrate subordinate to him.
2. Withdraw or recall any case made before his subordinate and dispose such proceeding or refer it to disposal.
Section 412 : Reasons which are to be recorded
An order made under 408,409,410,411 by Sessions Judge or the Magistrate shall be recorded with the reasons for making it.
Illustration 1 : Gurucharan Das Chadha v. State Of Rajasthan on 24 November, 1965[i]
Reasonable apprehension of the party that the justice will not be done to the case is important for a transfer of case. A petitioner is not required to demonstrate that the justice will not be met and the case is inevitably fail. It is one of the principle for administration of justice. A mere allegation of apprehension that justice cannot be met then the Court should decide whether such apprehension is reasonable or not.
Illustration 2 : Surendra Kumar v. Vijayan on 7 October, 2005[ii]
Under Section 408(1), the power conferred on the Session Judge to transfer a case which is pending in the Court of additional Sessions Judge to another, whether the hearing has commenced or not, it is concluded to be independent judicial power and it is not subject to any bar imposed by Section 409 (2) on its administrative powers for recalling a case after the trial or hearing of the case has commenced.
Illustration 3 : Ali Hussain And Anr. v. Emperor on 25 May, 1932[iii]
The court held that the High Court when they exercise the power of revision , they are not bound by Section 412 of the Criminal Procedure Code. But it may examine the record for the purpose of seeing whether a fair trial has been held and the decision taken as based on proper facts.
Illustration 4 : Food Inspector v. K.P. Alavikutty on 11 February, 1987[iv]
The magistrate posted the case for trial after considering the plea of not guilty. Then on re-organization of the jurisdiction of courts, the case has been transferred to another Magistrate under the Section 410. The Magistrate to whom it has been transferred is bound to the order of the predecessor and cannot go behind pre-cognizance stage.
Frequently asked questions
Can FIR be transferred ?
Concept of Zero FIR has been introduced after an amendment in Criminal Procedure Code. When a person lodges complaint in any police station and it is in the territorial jurisdiction then the will transfer it to the police station which has jurisdiction. A registered FIR cannot be transferred.
What is motion to transfer ?
It is a request to transfer or move a case from the existing court or judge to another court. Motion to transfer is requested for many reasons, it can be the inconvenience of the parties or their belief that the defendant will not receive a fair trial in the jurisdiction where the matter or the trial is pending.
Can a case under family law be transferred to another country ?
The party has to file for a motion called “Request for order” for transferring a case from one country to another and the other party can file a response to this motion if they don’t agree with it.
Can a person challenge the venue of a criminal trial ?
Yes, a person can challenge the venue of a criminal trial by filing a motion.
The motion is filed before the trial has began, it is a pre-trial motion. It is deemed to be accepted if the party remains silent about the change of venue. It results in waiving the right to challenge the venue of the trial. entering into guilty plea shall also restrict the defendant to challenge the venue of the trial.
What are the reasons needed for changing the venue of Criminal trial ?
The reasons are :
- Pre-trial publicity
- Improper Venue
- Interests of justice
Transfer of cases does not change the nature of the trial or relief given to the parties. It ensures that the parties are assured with the justice. The power of transfer of criminal cases has been given to Supreme Court, High Court and the Sessions Court even though the power may differ. Any application found to be vexatious under these sections then compensation can be paid to the person who has opposed it. The sum of compensation paid may differ from 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 the justice would not be met by the court under jurisdiction then only the case can be transferred.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] 1966 AIR 1418
[ii] 2005 (4) KLT 475
[iii] AIR 1933 Cal 308
[iv] 1987 CriLJ 1298