Procedure and Situations when a Criminal Case can be Transferred

The Code of Criminal Procedure (hereinafter ‘CrPC’) entails the transfer of a case in three arena, i.e. from one state to another state by the Supreme Court, from one criminal court to another criminal court within the State by the High Court and from one Magistrate to another Magistrate within the Sessions Division by the Session’s Court.

The three aspects are dealt in Section 406, 407 and 408 of CrPC respectively. These provisions specifically explain the procedure to be followed to transfer a criminal case from one court to another. The article is divided into three parts whereby first part shall explain the procedure and situation of transfer of cases by the apex court, the second part shall explain the procedure and situation of transfer of cases by the High Courts and third part shall explain the procedure and situation of transfer of cases by the Session’s Courts.

The rationale of Transfer of Cases

The rationale for this power is convenience-based and need-based. Sometimes for the convenience of the parties, the court may allow a transfer application so that the party is not subjected to unjust harassment. In other cases, the nature of the case or its affiliation makes it a need to transfer.

For instance, in a case of domestic violence against the wife, the wife may lodge the FIR at her marital home but it would not be possible for her to sustain the prosecution from her paternal home due to inconvenience. In such cases, convenience is a ground for transfer of the case.

In Eluri Raji Reddy v. State of Delhi[1], the wife filed a case under Section 25 of Domestic Violence Act and 498A of the Indian Penal Code. The Supreme Court allowed transfer from Delhi court to Andhra Pradesh since the wife had her paternal home at Andhra Pradesh.

A need-based transfer would be one where the court finds it necessary to transfer the case due to fear of impartiality or threat to victims and/or parties or the unforeseen consequences of the decision of the case.

For instance, in State of Tamil Nadu v. Selvi Jayalalitha[2], the prosecution of the then Chief Minister of Tamil Nadu Ms Jayalalitha in Tamil Nadu court was transferred to the Karnataka court to avoid any prejudice or partiality that could arise. This transfer can be said to be need-based to ensure justice is done at the end of the trial.

Part I

Transfer of Cases by the Supreme Court

The Supreme Court is the highest court of the country and thus, all other courts are subordinate to it. It means that the Supreme Court can transfer a criminal case from any criminal court including High Court to any other court in the same state of other states. Section 406 of CrPC empowers the apex court to transfer a case from one court to another to meet the ends of justice.

• Guidelines to transfer cases

Different courts have different powers of transferring and therefore, the procedure also differs accordingly. The procedure to transfer a case by the Supreme Court is provided under Section 406 of the CrPC. A careful perusal of the aforementioned provision would indicate that the following norms must be followed while allowing a transfer application:

1. The power must be exercised in light of a legitimate concern for equity and justice.
2. The petition or application for transfer must be made by either of the parties concerned and no one else.
3. If one of the parties is the Union of India or a State, the application on behalf of such party must be moved by the Attorney General for India or the Advocate General for the State as the case may be.
4. The transfer application must be accompanied by an affidavit verifying that the contents of the application are true.
5. A criminal case can be transferred from criminal court in a State to a criminal court in another State only by the Supreme Court.
6. The Supreme Court before allowing the transfer petition must ensure that there is a reasonable apprehension in one party that justice will not be done without transferring the case. In the State of UP v. Kaushalya Devi[3], the court held that the apprehension of injustice must be reasonable and based on just fact and not mere allegations.

• Situations When Cases are Transferred

Transfer application is not a tool to be used at the convenience of the party and to oppress the other party even if the person using the tool is the victim. The law acknowledges the rights of the victim to justice and right of accused to a fair and impartial trial at par and no one can be allowed to use their personal inconvenience as a reason for the transfer of application.

In Gayatri Mohapatra v. Ashit Kumar Panda [4], the court refused the transfer application of wife claiming that she had to travel for her mother’s business and could not sustain the case in other State since the husband was ready to pay for her travel expenses.

Therefore, it becomes necessary to examine cases which are justifiable for a transfer:

1. In Kaushalya Devi, the accused was charged for the murder of the Chief Justice of High Court and a transfer was requested from the High Court of that State to another State on grounds of apprehension of impartiality. The apex court held that in cases where all attributes of a fair and impartial trial are put to jeopardy, the transfer can be allowed.
2. In Inder Singh v. Kartar Singh[5], the respondent (original complainant) initiated a prosecution against Inder Singh who appealed to the High Court claiming that the complaint was frivolous. The Supreme Court was moved by the respondent to transfer the case from Cuttack to Chandigarh. The court observed that when the defendant is poor and the petitioner was the only witness to be examined, it was possible to transfer the case.
3. When the court observed that the influence of the respondent was such that there was a high possibility of harm being caused to the petitioner, the transfer was allowed[6].

Part II

Transfer of Cases by the High Courts

In general, Section 177 of the CrPC provides that the court in the local jurisdiction of which the offence has been committed shall have the territorial jurisdiction over the case. However, Section 407 of the Code empowers the High Court of a State to allow a court not having jurisdiction under Section 177 to exercise jurisdiction by transferring the case.

• Guidelines to transfer cases

The procedure entailed under Section 407 for the transfer of a case within the State from one criminal court to another includes:

1. The power must be exercised in light of a legitimate concern for equity and justice.
2. The report for transfer must be submitted by the lower court itself or a petition or an application for transfer must be made by either of the parties concerned and no one else.
3. If one of the parties is the State, the application on behalf of such party must be moved by the Advocate General for the State.
4. The transfer application must be accompanied by an affidavit verifying that the contents of the application are true save if the petition is moved by the advocate general.
5. If the transfer petition is filed by the accused person, the High Court may order him/her to execute a bond for the amount of money that the court deems fit to be compensation in case the petition is dismissed.
6. The accused person(s) must serve a notice to the Prosecutor of the case informing him of the transfer application and the grounds for moving such application.

• Situations When Cases are Transferred

The primary reason for the transfer of a case shall be the reasonable apprehension of an unfair or impartial trial and the travesty of justice being caused by the court. However, section 407 contemplates specific the following situations when a trial can be transferred by the High Courts:

1. Where a fair and impartial inquiry or trial proceedings are not possible to be conducted in the said court, the High Court can transfer the case to any other subordinate court.
2. Where the court believes that trying the case in the court in which it has been listed would give rise to unusual and unspeculative difficulty.
3. Where the Code or any other law requires the transfer or it is otherwise expedient in the interest of justice to transfer the case from one court to another.

Part III

Transfer of Cases by Session’s Court

According to Section 408, even a Court of Session is empowered to transfer a case in its original jurisdiction or appellate jurisdiction to any other criminal court. However, the power of the Session’s court is very limited.

It can transfer the case from criminal court within its session division to another court in that session division alone. The provision specifically states that the procedure and situations that apply to the High Court under Section 407 shall apply mutatis mutandis to Session’s Court as well. Hence, there is not much difference in the procedure as well.

• Guidelines to transfer cases

Different courts have different powers of transferring and therefore, the procedure also differs accordingly. The procedure to transfer a case by the Session’s Court is provided under Section 408 of the CrPC. A careful perusal of the aforementioned provision would indicate that the following norms must be followed while allowing a transfer application:

1. The power must be exercised only if it is needed to meet the ends of justice.
2. The application to transfer the case may be contemplated if a report is submitted by a sub-ordinate Magistrate’s court or Assistant Session’s Court to that effect.
3. If no report is filed by the court, an application must be made by either of the parties to the case who seeks transfer of the case. The court is empowered to act suo motu if it believes transfer is expedient for a fair trial.
4. The transfer application must be accompanied by an affidavit verifying that the contents of the application are true save if the petition is moved by the advocate general.
5. If the transfer petition is filed by the accused person, the High Court may order him/her to execute a bond for the amount of money that the court deems fit to be compensation in case the petition is dismissed.
6. The accused person(s) must serve a notice to the Prosecutor of the case informing him of the transfer application and the grounds for moving such application.

In Abdul Nazar Madani v. State of Tamil Nadu[7], the following norms were established by the apex court regarding the transfer of a criminal case:

1. If there is a likelihood that the public faith on the impartiality of the trial might get uprooted, courts should allow transfer under Sections 406 or 407 or 408 anywhere in India as the situation demands.
2. The person seeking transfer must have an apprehension not based on conjectures and surmises that fairness of trial might be compromised.
3. Transfer on the convenience of parties does not mean the convenience of the victim alone. The court should not subject the accused to uncalled and unnecessary harassment.

REFERENCES:

1. N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure (6th ed. 2014).
2. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th ed. 2006).
3. D. Basu, Criminal Procedure (6th ed. 2014).

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[1] Eluri Raji Reddy v. State of Delhi, 2004 Cri. L J 2555.

[2] State of Tamil Nadu v. Selvi Jayalalitha, 2015 SCC Online Kar 124.

[3] State of UP v. Kaushalya Devi, (1964) 1 Cri. L J 233 (SC).

[4] Gayatri Mohapatra v. Ashit Kumar Panda, (2003) 11 SCC 731.

[5] Inder Singh v. Kartar Singh, AIR 1979 SC 1720.

[6] Ranjeet Singh v. Popat Sonavane, AIR 1983 SC 291.

[7] Abdul Nazar Madani v. State of Tamil Nadu, AIR 2008 SC 2293.

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