Chapter 31 from section 406 to 412 of the criminal procedure code deals with the procedure of transfer of criminal cases and appeals from one court to another. Judiciary is overburdened with the pendency and delayed justice, causing dissatisfaction in judicial proceedings. So, to resolve this issue, certain provisions have been enacted that allow a criminal cases to be transferred from one court to another. This chapter has been added to the criminal procedure code, 1973 with the objective of preventing the miscarriage of justice. Transfer of cases does not change the nature of the trial or a remedy that is provided to the parties. This is only a mechanism to ensure that the justice has to be done to the parties. The Supreme Court, the high court and the session court have all been given the authority to transfer cases from one court to another court.
Under section 406, only the supreme courts has the power to transfer the criminal cases or appeal from one high court to another, as well as transfer the criminal case from one criminal court subordinate to another high court to another criminal court of equal or superior jurisdiction ,which is subordinate to another high court.
Under this section, the Supreme Court will transfer a case; if there is a reasonable apprehension on the part of a party to a case that justice will not be done.
For example, if a case is pending in a session court of Karnataka, the Supreme Court can transfer a case to another session court and if it is pending before Kerala high court Sc can transfer the case to another state high court.
Under this section, the application to request the transfer of cases and appeal can be made by the following person:-
Where the application has been made by the attorney general of India or advocate general of India, there is no need for an affidavit in support of the application, but where the application has been made by an interested party in such case, the application has to be supported by the affidavit.
Where, in the opinion of Supreme Court, the application has been made with frivolous or vexatious purpose, the Supreme Court can order the applicant to pay an amount not exceeding One Thousand Rupees as compensation.
Gurucharan das chadda v State of Rajasthan [1] In this case, the SC held that it shall exercise the power to transfer the cases if the interested party shows that there are circumstances indicating reasonable apprehension that the court dealing with the case may not be able to administer fair justice.
The high court is empowered to transfer the criminal cases or appeal from one court to another court if it finds that:-
The High court can transfer the criminal cases that will be made to the following court:-
The high court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative.
Where the application is made by the advocate general of state, there is no requirement for any affidavit or affirmation in support of the application, but if the application is made by anyone else, it needs to be supported by an affidavit or affirmation.
Where, in the opinion of the high Court, An application has been made with the frivolous ot vexatious purpose, the High Court may order to pay compensation not exceeding one thousand rupees.
Under this section, a session judge can transfer the case from one criminal court to another criminal court within his sessions division.
An Application for requesting the transfer of cases and appeal can be made by the following:-
Where the application is made by the advocate general of state, there is no requirement for any affidavit or affirmation in support of the application, but if the application is made by anyone else, it needs to be supported by an affidavit or affirmation.
Where, in the opinion of the sessions judge, an application has been made with the purpose of being frivolous or to vexatious (to annoy/irritate), it may impose a fine as compensation not exceeding two hundred fifty rupees.
In Surendra Kumar v. Vijaya [2] the court held that the power of Session judge to transfer the cases and appeals from a criminal court to another criminal court, which is mentioned under Section 408 (1) is an independent power and is not affected by any rule provided under subsection 2 of section.
A session judge can withdraw any case or appeal, or recall any case or appeal from an assistant session judge, or chief judicial magistrate at any time before the trial of case or hearing of the appeal is commenced before the additional session judge.
The Session judge can try the case or hear the appeal either himself or make over the case to another criminal court for the trial, or appeal as per the provision of criminal procedure code.
Under this section, the withdrawal of cases and appeal can be done only before the trial or hearing of the appeal is commenced. Once the trial or hearing of appeal is begins, there can be no withdrawal of criminal cases or appeal by the court.
Under this section, any chief judicial Magistrate has the power to withdraw a case which is subordinate to it or may recall any case which the court has earlier transferred to a subordinate court.
The chief judicial magistrate is empowered to inquire into the case or try the case either himself, or makeover the case to another court which is competent to hear the case or try the case.
Under this section, any district Magistrate or sub-divisional Magistrate has power to make over the cases to any magistrate who is subordinate to it for the disposal of the cases or any proceeding that has been started before such court. He also has the authority to withdraw the case or recall the case which he had previously transferred to any subordinate court as well as dispose of the case either himself or make it over to another court for the disposal of the case.
This Section provides that the Session Judge or any Magistrate who is making over the case under section 408 to 411 is under an obligation to record the reason. Whereas the Supreme Court or high court transfers the criminal case under section 406,407, there is no need to record the reason.
1. Vishwanath Gupta v/s State of Uttar Pradesh [3]
In this case, the applicant filed an application for the transfer of a case on the contention that he was under the apprehension that he wouldn’t be able to engage a counsel in the court where a case against him was already pending in the case. However, the District Bar Association submitted an application assuring the court that a defence counsel from among the members of the Bar Association would be made available to the applicant. The Supreme Court held the application to be invalid dismissing the prayer for the transfer.
2 Kaushalya Devi V/s Mool Raj [4]
The Supreme Court held that in cases where the application of transfer of the case is made but the Magistrate dealing with the case opposes the application by himself filing an affidavit then the transfer of the case, without any doubt in the complete interest of justice, because in all such cases the essentials of fair and impartial trial are already put to peril which is signified by the personal involvement of the judge himself.
3. Abdul Nazar Madani v/s State of Tamilnadu [5]
The Supreme Court in this case observed that “while no universal or hard and fast rules can be prescribed for deciding a transfer petition, which has always to be decided on the basis of the facts of each case, convenience of parties including the witnesses to be produced at the trial is a relevant consideration” and the paramount consideration being the need to meet the ends of justice. The Supreme Court further observed as follows:-
Transfer of criminal cases has no effect on the nature of the trial or remedies provided to the parties. It ensures that the parties receive the justice. If any application is found to be vague or vexatious under these sections, the person who has opposed it courts directs him to compensate. The amount of compensation paid may differ from one court to another, which is determined by the court. The Sessions Judge, Judicial Magistrate, or Executive Magistrate can recall or withdraw the cases. Orders made under these sections must be documented, along with the reasons for making them. If there is a reasonable fear that justice will not be served.
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