A is an accused who is being tried by Magistrate B of Udaipur for theft. A makes an application in the Rajasthan High Court [Jodhpur] for transferring the case to any other Magistrate of Udaipur on the ground that he apprehends that a fair and impartial trial cannot be held… Can the Rajasthan High Court transfer the case to any other Magistrate for trial?

Question: A is an accused who is being tried by Magistrate B of Udaipur for theft. A makes an application in the Rajasthan High Court [Jodhpur] for transferring the case to any other Magistrate of Udaipur on the ground that he apprehends that a fair and impartial trial cannot be held in the court of Magistrate B. The Rajasthan High Court is satisfied that the apprehension of A is reasonable. Can the Rajasthan High Court transfer the case to any other Magistrate for trial?

Find the answer only on Legal Bites. [A is an accused who is being tried by Magistrate B of Udaipur for theft. A makes an application in the Rajasthan High Court [Jodhpur] for transferring the case to any other Magistrate of Udaipur on the ground that he apprehends that a fair and impartial trial cannot be held… Can the Rajasthan High Court transfer the case to any other Magistrate for trial?]

Answer

The Code of Criminal Procedure (hereinafter ‘CrPC’) entails the transfer of a case in three arenas, 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 with in Sections 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 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 specifically the following situations when a trial can be transferred by the High Court:

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.

As observed in Manindra Kumar v. State of Rajasthan, 1992 Cr LJ 1392 (Raj), section 407 of the CrPC can be brought into action in any of three ways, namely—

• The High Court can act suo motu,
• The lower Court may apply or
• The party may apply

only when one or more of the following five conditions are fulfilled:

• a fair and impartial inquiry or trial cannot be had;
• some question of the law of unusual difficulty is likely to arise;
• an order under this section is required by any provision of this Code;
• it will tend to the general convenience of the parties or witnesses;
• it is expedient for the ends of justice.

Applying the aforesaid provision to the present case at hand, where A, the accused, makes an application in the Rajasthan High Court [Jodhpur] for transferring the case to any other Magistrate of Udaipur on the ground that he apprehends that a fair and impartial trial cannot be held in the court of Magistrate B. The Rajasthan High Court, if satisfied that the apprehension of A is reasonable, is well within its power to transfer the case to any other Magistrate for trial.

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