This article has been written by Srishti Singh, a 1st year student of BA LLB from the Army Institute of Law, Mohali.
Introduction
There are times when criminal cases have to be transferred from one court to another due to a variety of reasons such as relieving the overburdening of courts, facilitating the investigation process etc. The Supreme Court, the High Courts and the Sessions courts have been bestowed with the power to order and facilitate the transfer of criminal cases under the procedural law of Criminal Procedure Code, 1973 (CrPC). Chapter XXXI of the Code contains Sections 406 to 411, all of which set out the procedure and conditions for the transfer of criminal cases as well as appeals from one court to another.
Transfer of Criminal Cases and Appeals
Transfer of criminal cases and appeals means when the cases or appeals are transferred from one court to another for any reasons which may include –
- Ensuring justice
- Limited jurisdiction of the court
- Clash between the party and other judicial officer
- Engagement of judicial officer in litigation
- Judicial officer as a witness
- Any judicial authority acting in contravention of the principle of natural justice
- Any mutual disturbance with the judicial officer
Owing to all of the above-mentioned factors, the courts in India are empowered to transfer criminal cases to another court. Transfer of criminal cases and appeals can be of many types, all of these are discussed as follows.
In Vishwanath Gupta v. State of U.P. [1969 SCC OnLine All 250], the applicant had filed an application for the transfer of a case as he was doubtful whether he would be able to hire a counsel in the court where a case against him was already pending. The Allahabad High Court held the application to be invalid and dismissed the plea for transfer. Moreover, the District Bar Association submitted an application assuring the court that a defense counsel shall be appointed to the applicant from its members.
In Kaushalya Devi v. Mool Raj [ (1964) 4 SCR 884], the Apex court ruled that when a case is made, but the Magistrate handling it opposes the request by filing an affidavit on his own behalf, the case must be transferred to another court as directed, as it is in the best interest of justice.
Transfer of Criminal Cases and Appeals by Supreme Court
Section 406 of the CrPC elaborates upon the transfer of cases by the Supreme Court. It is stated here that the Supreme Court in the spirit of administering justice can order the transfer of criminal cases and appeals from one High Court to another or from a Criminal Court to a High Court, or another Criminal Court of equal footing or of superior jurisdiction but, subordinate to hat of the High Court’s.
The application for requesting the transfer of criminal cases and appeals can be made by an interested party to the dispute in the fear of an unfair trial or injustice, or by the Attorney-General or Advocate General of India. If the application is being made by the former, it must be supported by affidavit or affirmation. If the Supreme Court finds any such application to be of frivolous or vexatious nature and decides to dismiss such application, then it can order the applicant to pay a sum of one thousand rupees.
In Neelam Pandey v. Rahul Shukla [2023 LiveLaw (SC) 141], the Apex Court observed that the transfer of a criminal case from one State to another implicitly reflects upon the credibility of the State judiciary from where it has been transferred and also, of the prosecution agency involved in the case.
Transfer of Criminal Cases and Appeals by High Court
Section 407 of the CrPC deals with transfer of cases and appeals by order of the High Courts. It states that a High Court can order the transfer of cases and appeals to other courts subordinate to it, if it is found that fair inquiry cannot be held, or that some question of law of unusual difficulty is highly likely to arise or any order under this section will prove to help in administering speedy justice or will tend to the convenience of the parties or witnesses.
Upon transfer of cases or appeals, it must be noted that the procedure to be followed in court for the proceedings shall remain the same as before, i.e., before it was transferred. Moreover, here it is also stated that nothing in this section shall affect any Government order under Section 197, which deals with prosecution of judges and public servants.
The transfer can be done on the request of a lower court, on the request of an interested party or on its own. Every application for such order shall be made by motion supported by an affidavit or affirmation, except in the case of the Advocate General of the State making it. The High Court may even order the applicant who is an accused person to execute a bond for the payment of compensation which the High Court may award. Every accused person making such application shall also give to the public prosecutor notice in writing of the application along with a copy of the grounds on which it is being made.
The High Court also has the power to order the proceedings to stay in the original subordinate court in the interests of justice, if it deems fit. However, such order must not affect the subordinate Court’s power of remand.
If the High Court finds any application requesting transfer to be vexatious or frivolous in nature then, it can dismiss such application and can order the applicant to pay a compensation of rupees one thousand.
Transfer of Criminal Cases by Sessions Court
Section 408 of the Criminal Procedure Code, 1860 discusses the powers of Sessions Judge in transference of cases and appeals. It states that if the Sessions Judge feels that there is a need to transfer a case or an appeal from one court to another to facilitate delivery of speedy justice, he may order the transfer of any case from one Criminal court to another in his sessions division. He too, may act either on a report by a lower court or on the application of an interested party or on his own.
It is further stated that the provisions laid out for the transfer of criminal cases by High Courts shall also be applicable in the case of Sessions courts. However, the fine to be paid upon an application found to be vexatious or frivolous nature, which has been dismissed by the Sessions Judge has been reduced to two hundred and fifty rupees.
Withdrawal of Cases
Section 409 of the CrPC contains provisions regarding the power of the Sessions Court in withdrawing cases and appeals. It states that a Sessions Judge may withdraw or recall any case or appeal which he has made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. Moreover, he may recall any case or appeal at any time before the trial of the case or hearing of the appeal has begun before the Additional Sessions Judge. Upon withdrawal or recall of any case or appeal by the Sessions Judge, he is empowered to try the case in his own Court or hear the appeal himself, or transfer the case or appeal to another Court for trial or hearing, whichever is applicable in the given case.
The Chhattisgarh High Court in Toman Lal Yadav vs. State of Chhattisgarh and Ors. [2023 LiveLaw (Chh) 3], observed that Section 409(2) of the CrPC creates a bar on the Sessions Judge’s administrative power to recall the sessions after the trial has commenced.
Conclusion
Transfer of criminal cases is a process which is frequently used in India’s judicial system. It is motivated by a variety of factors, all of which are in the spirit of providing a free and fair trial to the accused and the opposite party. The CrPC discusses the transfer of criminal cases and appeals in Chapter XXXI from Sections 406 to 411. These provisions have been applied by our courts countless times and shall continue being invoked to ensure impartial delivery of justice in the future as well.
References
https://blog.ipleaders.in/53282-2/
https://www.legalserviceindia.com/legal/article-5880-transfer-of-criminal-cases.html
https://www.writinglaw.com/transfer-of-cases-crpc/