Transfer of Cases under CrPC

The mandatory procedure for pursuing a case is outlined in the Code of Criminal Procedure, 1973. Chapter XXXI of this Code specifically covers the transfer of cases under CrPC (Section 406 to 411). The primary objective of introducing these provisions is to ensure justice is delivered to people, and to facilitate this, the right to appeal is also provided. 

The growing backlog of pending cases and appeals has led to delayed justice and created dissatisfaction within the judicial system. Certain provisions have been implemented to transfer criminal cases from one court to another to tackle this issue. 

It’s important to note that the right to appeal in the Supreme Court is only available in exceptional circumstances, as the original court of criminal appeal is typically the High Court, according to the Code of Criminal Procedure.

Meaning of Transfer of Cases under CrPC

Transfer of cases under the Code of Criminal Procedure (CrPC) refers to moving a criminal case or appeal from one court to another within the same jurisdiction or to a different jurisdiction. The CrPC contains provisions that empower higher judicial authorities to transfer cases and appeals under specific circumstances to ensure a fair trial, uphold the principles of justice and promote the convenience of the parties involved in the litigation.

The nature of the trial or the relief granted to the parties involved remains unchanged when a case is transferred. The power to transfer of cases in CrPC is granted to various authorities, including the Supreme Court, High Courts, Sessions Judges, Chief Judicial Magistrates, and Executive Magistrates, depending on the level and nature of the case. The reasons for such transfers could be related to jurisdictional issues or concerns about the court’s composition.

The principle of delivering justice fairly and transparently is always upheld throughout the judicial system. The judiciary is the cornerstone of ensuring justice and has consistently maintained a strict stance on the impartiality of trial procedures. Both the civil and criminal codes of procedure offer valid justifications for transferring cases between courts.

Section 406 to 411 of the Criminal Procedure Code of 1973 deals with the transfer of cases.

Types of Transfer of Cases under the Criminal Procedure Code, 1973

Under the Code of Criminal Procedure, there are six types of transfers of cases:

• The Supreme Court can transfer cases from one state to another state.
• A state’s High Court can transfer cases from one court to another with equal or superior jurisdiction or even transfer a case to itself.
• The Sessions Judge can transfer cases from one court in their Sessions Division to another.
• The Sessions Judge can withdraw cases from Additional Sessions Judges, Assistant Sessions Judges, or the Chief Judicial Magistrate.
• The Chief Judicial Magistrate can withdraw cases from any magistrate under their command.
• Executive magistrates, including district and sub-district magistrates, can dismiss cases.

Provisions for Transfer of Cases under CrPC

Chapter XXXI deals with the transfer of criminal cases under CrPC. This chapter comprises Sections 406 to 412, which outline the rules and procedures for transferring criminal proceedings. The rules include:

Section 406 – Power of Supreme Court to Transfer Cases and Appeals

Section 406 of the Criminal Procedure Code grants the Supreme Court the discretionary power to transfer cases and appeals. This broad discretionary power allows the Supreme Court to transfer any case or appeal to the High Court of any other State in the country to uphold the principles of justice and natural justice.

An application seeking the transfer of a case or appeal pending in a High Court can be filed with the Supreme Court by:

• 1. Individuals who fear injustice in court proceedings.
• 2. Individuals who believe they won’t receive fair justice in the court where the case is currently being heard.
• 3. The Attorney General or Advocate General of India.

The Supreme Court’s power to transfer cases and appeals under Section 406 is purely discretionary, and the applicant is not required to conclusively prove their reasons for seeking the transfer. The applicant must submit an affidavit or an affirmative motion in the prescribed format under Section 406 unless the applicant is the country’s Advocate General or Attorney General.

The Supreme Court’s authority to transfer cases and appeals also extends to cases pending before any subordinate court in the country. However, during the hearing, the Supreme Court ensures that it upholds the principles of fair and natural justice while deciding on the transfer of criminal cases in CrPC. The applicant is always entitled to approach the court with appropriate jurisdiction if they have reasonable grounds to believe that certain factors might impede their right to a fair trial.

This provision allows for the transfer of cases and appeals from the Supreme Court to another High Court or from one High Court to another. The transfer of cases under CrPC can occur if it is deemed in the interest of justice. The Attorney General of India can make applications for such transfers, the Advocate General of the involved state, or any other party involved or interested in the case, which an affidavit or confirmation must support. Anyone found to have filed a fraudulent application under Section 2000 may be required to pay compensation to the opposing party.

In the case Suman Gambhir v. State of Rajasthan & Ors., the complainants and accused are based in Delhi, the civil suit between them is pending in Delhi, and the state has no objection to transferring the case from Rajasthan to Delhi.

In Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v. State of Punjab & Anr., the petitioners requested the transfer of the criminal case against them to the Chief Judicial Magistrate’s Court in Jalandhar Filler, Punjab, Barpeta, Assam, under Sections 363-A, 366 and 120-B. The grounds for the transfer of a criminal case under CrPC were potential life-threatening situations, as petitioners 1 and 2 had run away to marry. The Supreme Court, considering the interest of justice and the client, granted the transfer of the case.

In Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr., transfer Petitions of 2004 (Crl.) No. 254-55, along with No. 89 of 2005, the Supreme Court held that the petitioners sought the transfer of case in CrPC based on an inability to engage the defendant’s lawyers. The concerned court did not permit the District Collector’s Association when an affidavit was submitted that the petitioner had been provided with legal counsel.

In Sukhdev Singh Sodhi vs. The Chief Justice and Judges of The PEPSU High Court, the court clarified that the power to transfer cases to the Supreme Court does not extend to the transfer of any pending contempt proceedings in the High Court.

The authority to transfer cases and appeals is not only discretionary but also limited because Section 406 does not give the Supreme Court the power to transfer pending investigations from one police station to another solely to file an FIR. Suppose the Supreme Court considers the filed petition trivial and lacks substantive rights. In that case, the party submitting the petition may be ordered to pay compensation in excess of one thousand rupees to the opposing party.

In the case of Kaushalya Devi v. Mool Raj, the magistrate dealing with the case filed an affidavit opposing the transfer application, stating that there was no doubt about the transfer being in the interest of justice. This is because, in such cases, the requirements for a fair and impartial trial are already at risk, as indicated by the personal involvement of the judge.

Section 407 – Power of High Court to Transfer Cases and Appeals

Section 407 of the Criminal Procedure Code confers the power on High Courts to transfer cases and appeals. The circumstances under which the High Court may order the transfer of a case or appeal are as follows:

• When the High Court is satisfied that the right to a fair and impartial hearing guaranteed under Article 21 of the Constitution of India cannot be ensured if subordinate courts try the case.
• When there are extraordinary difficulties related to the questions involved in the case pending before the court.
• When the transfer of the appeal or case is necessary due to any provision under the Criminal Procedure Code.
• When the transfer order is for the general convenience of the parties or witnesses involved in the lawsuit.

The High Court can issue the following orders once it is satisfied with the above grounds:

• Directing the prosecution to be made in any court subordinate to or subordinated to, it under sections 177 and 185 of the Code, but no trial shall take place except in a court having jurisdiction over the case.
• Transferring a particular case or appeal pending before any criminal court to another criminal court having jurisdiction over the High Court.
• Placing a particular case before the Sessions Court for trial.
• Transferring a particular case or appeal to itself (the High Court) for adjudication.

The authority to exercise the power of transfer by the High Court falls under the following instances:

• When the lower court submits a report requesting the transfer of the appeal or case.
• When an interested party applies before the High Court seeking the transfer of a case or appeal.
• The High Court may exercise its discretion to transfer the case or appeal if it is satisfied that it is in the interest of justice.
• However, while transferring the case, the High Court should consider that no application for transferring a case from one criminal court to another shall be entertained if it is made to the Sessions Court of another Sessions Division and has already been rejected.

When the High Court exercises its power to transfer cases and appeals, it does so under the following circumstances:

• When it believes that a fair, just, and impartial trial cannot be conducted in the current court.
• When the case involves questions of unusual difficulty.
• When specific provisions of the Criminal Procedure Code mandate the transfer.
• When it is necessary for the convenience of the parties and witnesses.
• When it serves the ends of justice.

However, in the case of Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors., the Supreme Court rejected the plea to transfer criminal cases from Jammu to Srinagar, as most of the witnesses were from Srinagar and the court found no need for the transfer since all the witnesses from Jammu were already examined.

A case or appeal can be transferred under this section:

• From one Criminal Court to another Criminal Court subordinate to the High Court or within its jurisdiction.
• To a Sessions Court for trial.
• The High Court itself may try the case.

In the case of Pal Singh & Anr. v. Central Bureau of Investigation & Ors., the Supreme Court stated that a criminal case or appeal may be transferred from one district court to another within the same jurisdiction. There is no provision for inter-state transfer of cases in CrPC. Additionally, when a case is in its final stages of trial, and most witnesses have already been examined, a transfer may not be appropriate.

Transfer applications can be made by affidavits or confirmation:

• By the report of the lower court.
• By an interested party.
• The High Court may also initiate the transfer on its own.

In the case of Nirmal Singh v. the State of Haryana, the Supreme Court set aside the order of the Punjab and Haryana High Court, transferring the criminal case to Chandigarh based on the Sessions Judge of Ambala’s decision. The reasons for the transfer were not given, and many accused argued that engaging legal counsel in Chandigarh would incur additional costs.

If a case is to be moved from one criminal court to another within the same Sessions division, the transfer application can be filed in the High Court only if the Sessions Judge has already rejected it.

The High Court oversees the proceedings to ensure a smooth case transfer or appeal transfer.

Section 408 – Power of Sessions Judge to Transfer Cases and Appeals

Section 408 of the Criminal Procedure Code empowers the Sessions Judge to transfer cases and appeals within their Sessions Division if deemed appropriate in the interest of justice.

Subsection 1 of Section 408 states that the Sessions Judge can transfer cases under CrPC from one criminal court to another criminal court within the jurisdiction of their Sessions Division to serve the ends of justice.

Subsection 2 of Section 408 provides instances where the Sessions Judge can transfer cases under CrPC. This includes cases where a report is filed by the lower court requesting the transfer and cases where an interested party or the court files an application for transfer at its own discretion.

The provisions of subsection (3), (4), (5), (6), (7), and (9) of Section 407 also apply to the Sessions Judge when making any order related to the authority while exercising the provisions referred to under subsection 1 of Section 407. These provisions apply to the Sessions Judge in the same manner as they apply to the High Court.

The Sessions Judge may exercise this power:

• 1. At their discretion.
• 2. Based on a report filed by the lower court.
• 3. In response to an application made by a party.

Some provisions of Section 407 also apply to orders under Section 408. For instance:

• 1. If the accused files a transfer petition, the High Court or the Sessions Judge may order the accused to execute a bond with or without sureties. The accused must also provide written proof of such an application to the Public Prosecutor. No order shall be made on the merits of the application until 24 hours have elapsed between the filing of the notice and the application hearing.
• 2. If a person is found to be filing fraudulent transfer applications, they may be ordered to pay compensation up to Rs. 1000 by the High Court or Rs. 250 by the Sessions Judge to any party who opposed the application.

Section 407 or 408 shall not affect the Government Orders under Section 197.

Section 409 – Withdrawal of Cases and Appeals by Sessions Judge

Under the Criminal Procedure Code, the Sessions Judge can withdraw or transfer a case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate under their authority. However, in the case of an Additional Sessions Judge, this can only be done if the trial has not commenced. The Sessions Judge may choose to try the case or appeal in their court or transfer it to another court as per the provisions of the Code.

In the case of Subrata Pal v. Ratna Gope & Anr., the Agartala Bench of Gauhati High Court stated that if a case or appeal is withdrawn from the Court of an Additional Sessions Judge, the Sessions Judge must report to the High Court when the trial or proceedings have commenced. The report should include the reasons for such withdrawal under Section 407(2) of the Criminal Procedure Code.

Section 410 – Withdrawal of Cases from Judicial Magistrates

Under the Criminal Procedure Code, the Chief Judicial Magistrate has the power to withdraw or recall any pending case before any Magistrate under their authority. The Chief Judicial Magistrate can then refer the case to another Magistrate who is competent to try and hear the case.

Similarly, the Judicial Magistrate has the authority to withdraw and take cognizance of any pending case before any other Magistrate under Section 192(2) of the CrPC, 1973.

In the case of Mehfoos Khan & Anr. v. R. J. Parakh & Anr., the Bombay High Court clarified that the power of a Judicial Magistrate under Section 410 is not an administrative order but a judicial order. The use of the words “withdrawal” or “recall” is akin to the term “transfer.” Since the state is the leading party in all criminal cases, it may apply to transfer the criminal case if there are compelling reasons.

Section 411 – Withdrawal of Cases from Executive Magistrates

Sections 409 and 410, Section 411 of the Criminal Procedure Code empowers the Executive Magistrates to withdraw or recall any pending case before a Subordinate Magistrate. The Executive Magistrate can then either dispose of the proceedings in their court or transfer the case to another Subordinate Magistrate competent to deal with it. This provision gives the Executive Magistrates the flexibility to handle cases in the most appropriate manner based on the circumstances and requirements of the situation.

Section 412 – Reasons to be recorded

Section 412 of the Criminal Procedure Code stipulates that if any transfer order is made under Section 408, Section 409, Section 410, or Section 411, the reasons for such transfer must be recorded in writing. This requirement ensures that transfer orders are not arbitrarily issued based on fair, just, and compelling reasons. 

Conclusion

The transfer of criminal cases under CrPC is a crucial mechanism designed to uphold the principles of justice and ensure a fair and impartial trial.  Various provisions within the CrPC empower higher judicial authorities to transfer cases and appeals when compelling reasons exist. The process aims to address issues such as jurisdictional conflicts, local biases, the convenience of parties and witnesses, and the complexity of the case. 

The Supreme Court, High Courts, Sessions Judges, Chief Judicial Magistrates, and Executive Magistrates possess the authority can transfers cases under CrPC. The transfer of criminal cases must be based on specific circumstances and recorded. By recording the reasons for the transfer, transparency is maintained, and the transfer is executed in a just and fair manner. 

Ultimately, the transfer of cases under CrPC seeks to streamline the judicial process and provide a suitable forum for the resolution of disputes, ensuring that justice is upheld for all parties involved.