Transfer of Criminal Cases (Section 406 – 412): Power of High Courts and Supreme Court

INTRODUCTION

In the pursuit of justice, the cornerstone of any legal system lies in ensuring fair and impartial trials. However, there are occasions when the integrity of a trial may be called into question, necessitating the transfer of a case to a different court. This transfer becomes imperative when an accused individual harbors genuine concerns about receiving a fair trial under a specific judge or Magistrate. The right to request such a transfer is fundamental to safeguarding the principles of fairness and honesty in judicial proceedings.

Furthermore, the efficacy of judicial processes is often impeded by the overwhelming burden of pending cases and appeals, leading to significant delays in the delivery of justice. Recognizing this challenge, legislative measures have been enacted to facilitate the transfer of criminal cases from one court to another. These laws aim to alleviate the strain on overburdened courts, thereby streamlining the judicial process and ensuring timely resolution of legal matters.

The provisions related to the transfer of cases are given under Chapter 31 from sections 406 to 411 of the Criminal Procedure Code, 1973.

OBJECT:

The primary object of every procedural law is to facilitate justice and further its ends. A fair and impartial trail is an essential requirement to serve the justice. It is only possible when the court dealing the case is independent. It is fundamental principle of law that justice should not only be done but be seen to have been done.

If one has reasonably doubted that justice will not be done, the case can be transferred to some other court.

Amarinder Singh v. Parkash Singh Badal 2009 SC , Supreme Court observed as follows:

 “Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC.”

In the case of Nahar Singh Yadav v. Union of India 2011, The Hon,ble Supreme Court has outlines following objectives for transfer of criminal cases:

• When it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;
• When there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;
• Comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the state exchequer in making payment of travelling and other expenses of the official and non-official witnesses;
• A communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and
• Existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.

PROVISIONS AS REGARDS TO TRANSFER OF CRIMINAL CASES BY SUPREME &HIGH COURT:

Constitutional Provisions:

• Article 139 A : Transfer of certain cases involving substantial questions of law to the supreme court

• A new article 139 a was introduced in the constitution by the 42nd amendment act, 1976 for transfer of cases i.e. Cases involving the same or substantial question of law pending before the supreme court and one or more high courts or before two or more high courts and those questions are substantial questions of general importance.

• The object is to avoid multiplicity of adjudications and conflicting opinions.

• The object of transfer of cases is to facilitate quick disposal of cases.

• Article 215 of Indian Constitution and Section 407:Power of High Court to transfer a case involving point of Constitution

Under Article 228 of the Indian Constitution, if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may:

1. either dispose of the case itself, or
2. determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question,

The said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.

TYPE OF TRANSFER UNDER CODE OF CRIMINAL PROCEDURE

As a general rule, only that court will try the case where the crime has been committed. But under this chapter 31(sec. 406 to 412) deals with the transfer of criminal cases, which empowers superior courts to transfer criminal cases in certain circumstances.

There are six types of transfers of criminal cases under this code:-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We will discuss two crucial dimensions of transfer of criminal cases:

1. The authority wielded by the Supreme Court
2. The power vested in High Courts

 

1. Power of Supreme Court to Transfer cases and Appeals (Section 406):

The power granted by the Code under Section 406 to the Supreme Court is purely discretionary in nature and the applicant is under no obligation to conclusively establish that in case the transfer does not take place then fair justice will not take place and the applicant is only expected to reasonably substantiate the contentions made by him under the application he has submitted to the Supreme Court. 

The provision provides for the transfer of cases and appeals by the Supreme Court from

1. one High Court to another or
2. one a criminal court subordinate to one High Court to another criminal court (of equal or superior jurisdiction) subordinate to another High Court

2. Procedure:

It is mandatorily to present a transfer application to Supreme Court

1. By Attorney General of India
2. Advocate General of the state party to the case
3. Any other party involved or interested in the case, in which case it must be supported by an affidavit or affirmation
4. When someone wants to transfer a criminal case, they need to fill out a form called a motion. Which shall also be supported by an affidavit or affirmation.

But, there's an exception to this rule. If the person applying to transfer the case is the Attorney General of India or the Advocate General of the state, they don't need to provide this written statement. Their position already carries enough authority, so they're exempt from this requirement.

3. In case a person is found filing a fraudulent application under the Section, the Supreme Court is empowered to pass an order for compensation up to Rs. 2000 to be paid to any party which opposed the transfer petition.

 Case Laws:

Jag Bhusan v State AIR 1962

The words "party interested" would normally include the complainant, the Public

Prosecutor, and the accused and may even cover a person lodging the F.I.R.

Maneka Sanjay Gandhi And Anr vs Rani Jethmalani , 1978

The Supreme Court said that having a fair trial is very important to justice, and is the main factor that the court considers when deciding whether to transfer a case. The court will not consider the convenience of a party, easy availability of legal services or other grievances while transferring the criminal case. Something substantial from the point of view of public justice is necessary for the court to exercise its power of transfer. 

Zahira Habibulla H. Sheikh v State of Gujarat ("Best Bakery Case") 2004 SC

The Apex Court ruled that it can order transfer even without the request of a party if it

is convinced that such a step is necessary in the interest of justice.

Facts of the case are that Both the State and a star witness (Zahira) approached the Supreme Court seeking the retrial as the trial was not conducted properly due to the witnesses turning hostile and non-cooperation of the Public Prosecutor. The Supreme Court not only ordered re-trial but also transferred the case to the State of Maharashtra. It was held that the Supreme Court as an appellate court can in exercise of its plenary powers under Art. 136 of the Constitution fix place or court which should undertake retrial. The fact that there is no formal application seeking transfer of case is immaterial.

SC further held that it has jurisdiction to transfer a case for re-trial outside the state if it considers necessary in the interest of justice and to redeem the faith of victims in criminal justice and reinstate people's faith in rule of law.Place or court which should undertake re-trial can be fixed by the Supreme Court as an appellate court exercising plenary powers under Article 135 and 136 of the Constitution read with section 406 of the IPC.

Ram Chander Singh Sagar And Anr vs State Of Tamil Nadu And Anr 1978 Supreme Court:

Section 406 grants the court the authority to move a case or appeal from one High Court or a court that falls under it to another High Court or a subordinate court. However, this section doesn't give the court the power to transfer investigations from one police station to another just because the initial information or a remand report is sent to a court.

Rhea Chakraborty v. The State of Bihar 2021 SC

The disagreement arose between the states of Bihar and Maharashtra over a case involving the death of a person from Bihar in Bombay under suspicious circumstances. The victim's father filed a report in Bihar, while the Maharashtra police, because the incident occurred in Bombay, had a responsibility to investigate. Meanwhile, the media speculated, pointing fingers at a specific actress. Amidst this, Rhea Chakraborthy approached the Supreme Court, requesting a CBI investigation. The Supreme Court noted that Section 406 doesn't allow the transfer of investigations between courts or states.

Yogesh Upadhyay v. Atlanta Ltd, 2023 SC

In spite of the non obstante clause in Section 142(1) of the NI Act, the authority of the Supreme Court to transfer criminal cases u/s 406 of the CrPC remains unaffected when it comes to offenses u/S 138 of NI Act 1881, as long as it is deemed necessary for the interests of justice. So, Supreme Court can transfer cheque-related cases from one state to another using Section 406 of CrPC.

Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 SC

The authority to transfer cases under Section 406 of the Code of Criminal Procedure should be used sparingly, and only when it's evident that justice is seriously at risk.

Nazma Naz v. Rukhsana Bano, 2022 SC

The Supreme Court pointed out that any mistakes or faults or delays by the staff of the Subordinate Court are not, in themselves, sufficient grounds to justify transferring a case.

2. Transfer of Cases and Appeals by High Court (Section 407): Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases and appeals.

Circumstances in which HC may order the transfer of a case or appeal [407(1)]: The High Court has the authority to transfer the cases when it is satisfied that:

• That a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto; or
• That some question of law of unusual difficulty is likely to arise;
• The transfer of the appeal or the case required under any of the provisions under the Code;
• The order of transfer will be in the interest of the general convenience of the parties or witnesses involved in the suit, or is expedient for the ends of justice.

Case :

Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors 1982 SC

The Supreme Court rejected the petition for the transfer of criminal cases from Jammu to Srinagar on the grounds that most of the witnesses belong to Srinagar. The Court held that since all of the witnesses from Jammu have been examined, the case need not be transferred.

Then the High court may order:

The High Court on being satisfied with the presence of the above-mentioned grounds can order any of the following:

• The offence which is inquired into or tried by any Court subordinate to it be inquired by any other court which is inclusively under both Section 177 and Section 185 of the Code is not qualified but is otherwise competent to inquire into or try offences like the ones which are in question;
• Where a particular case or appeal is pending before any criminal court which is subordinate to it to any other criminal court which is having equal or superior jurisdiction in comparison to the High Court;
• The particular case be laid down before the court of Sessions for hearing;
• The particular case or appeal be laid down before the High Court itself

Procedure:The High Court will act either:

1. On the report of the lower court
2. On the application of party interested
3. On its own initiative (Suo Moto)

Proviso: Before approaching the High Court for transferring a case between two Criminal Courts within the same sessions division, the applicant must first seek transfer from the Sessions Judge. If the transfer request is rejected by the Sessions Judge, only then he can approach to the High Court.

Case :

Nirmal Singh v. State of Haryana 1996 SC, the Supreme Court set aside the order of the Punjab and Haryana High Court transferring a criminal case from Sessions Judge of Ambala to that of Chandigarh, on its own. The reason was that neither a notice was served to the parties nor they were given an opportunity to be heard. Also, many of the accused argued that they will have to incur extra expenditure like engaging legal counsels.

                     Application and Affidavit:

As per 407(3) Every application for an order under sub-section (1) shall be made by motion and be supported by affidavit or affirmation. However, it is not required if an application is made by Advocate General of the state.

Bond in case of Application moved by Accused:

As per section 407 (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

Notice:

Applicant must give notice to the public prosecutor in writing, together with copy of grounds on which transfer is sought. Order of transfer can only be passed after 24 hours of service of notice and the hearing of application.

Stay of proceeding

If an application is made to transfer a case or appeal from a Subordinate Court, the High Court can order a stay of the proceedings in the Subordinate Court if it deems it is necessary in the interest of justice. Such stay can be imposed with such terms as it thinks fit.

Proviso: such stay shall not affect the Subordinate Court's power of remand u/s 309.

Compensation:

If the High Court dismisses an application under sub-section 407 (1) and deems it frivolous or vexatious, it can order the applicant to pay compensation, not exceeding 1000, to the opposing party as it deems appropriate in the given circumstances.

Procedure to follow after transfer to itself :

When the High Court orders the transfer of a case from a lower court to itself under section 407(1), it must follow the same procedural rules that the lower court would have followed if the case had not been transferred.

Exception to this section

As per Sub section 9 of Section 407, it is provided that this section will not affect any order of the Government made under section 197 of Code of Criminal Procedure which contains the provisions regarding previous sanction of government for the prosecution of Judges/Public Servant when the offence was committed by him in the discharge of official duty.

POWERS OF THE APPEALATE COURT

Section 386 of the CrPC declares the powers of an Appellate Court. It will come into play only in a case where the appeal has not been dismissed summarily under section 384 though the power to dismiss an appeal summarily is by itself a power of the Appellate Court. Section 386 of CrPC states that the Appellate Court may dismiss the appeal if it considers that there is no sufficient ground for interfering with the order under appeal.

The Code of Criminal Procedure, 1973 (hereinafter CrPC), contains elaborate provisions on appeals against a judgment or order of the criminal courts. The appellate process provides an opportunity to correct any possible factual or legal errors in a judgment or order. Section 386 of the CrPC defines the powers of the appellate Courts in dealing with appeals. The Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:

• In an Appeal from case of Acquittal: In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
• In an Appeal from case of Conviction: In an appeal from a conviction

1. Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial, or
2. Alter the finding, maintain the sentence, or
3. With or without altering the finding, alter the nature of the sentence’s extent, or the nature and extent, but not so as to enhance the same.

• In an appeal for enhancement of sentence:

1. reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
2. alter the finding maintaining the sentence, or
3. with or without altering the finding, alter the nature of the extent, or the nature and extent, of the sentence so as to enhance or reduce the same;

• In an appeal from any other order, alter or reverse such order;
• Make any amendment or any consequential or incidental order that may be justified or proper;

Provided that the sentence shall not be enhanced unless the accused has been given an opportunity of showing cause against such enhancement.

Provided further that the Appellate Court shall not inflict greater punishment than the court passing the order or sentence under appeal for the offence, which in its opinion the accused has committed.

Section 386(b) gives ample powers to the Appellate Court in relation to an appeal arising from an order of conviction and the Appellate Court may even acquit the person convicted of an offence by the trial court.

Section 386(1) of CrPC states that pending any appeal by. a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

CASE LAWS :

KS Panduranga v. State of Karnataka AIR 2013 SC , the Supreme Court ruled out the following principles –

• That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;
• That the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer is absent;
• That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;
• That it can dispose of the appeal after perusing the record and judgment of the trial court;
• that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in the law would preclude the court from doing so; and
• That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.

CONCLUSION

A crucial aspect of Indian law is the transfer of cases from one court to another. All Indian courts have a responsibility to uphold justice and provide a fair trial. The nature of the matter may not change even though it is transferred from one court to another. Every member of society should receive a clear message about justice from the court, which always maintains an impartial viewpoint.