CONCEPT OF TRANSFER OF CRIMINAL CASES

CONCEPT OF TRANSFER OF CRIMINAL CASES

Author: Jagakalia Agasti

INTRODUCTION

Indian Penal Code, 1860 and Code of Criminal Procedure, 1973 mainly deals with criminal cases in India. Transfer of criminal cases are discussed in the CrPC from section 406 to 412. There are many cases pending in the courts which delays the delivery of justice to people. So, to maintain the belief of people in judiciary system and fasten the judicial process certain provisions are laid down to transfer the criminal cases from one court to another. As per the CrPC, the right of appeal is only available in the High Court. But only in exceptional cases, the right of appeal is available in the Supreme Court.

POWER OF SUPREME COURT TO TRANSFER CASES AND APPEALS

Section 406 of CrPC gives power to Supreme Court to transfer cases and appeals. Any persons can request to transfer the case or appeal to the Supreme Court which is pending before the High Court, if the person believed that-

1. There is an unfair trail by the court on his case.

2. He can’t be able to find any proper justice delivered to him.

3. He is the Attorney General or Advocate General of India.

Supreme Court also has the power to transfer any cases from any subordinate courts in case of pending of any matter. Supreme Court also takes necessary measures to maintain fairness and principle of natural justice while transferring the case which is also ensued by the court where the case was pending.

In Sukhdev Singh Sodhi v. The Cheif Justice and Judges of The PEPSU High Court[1], the court held that the power of Supreme Court to transfer any case does not extend to transfer any cases of contempt proceeding which is pending before the high court.

If Supreme Court opined that the application was vexatious, then the party who filed the application will have to give compensation not more than one thousand rupees to the other party who was against the application.

In Kaushalya Devi v. Mool Raj and Ors[2], the Supreme Court held that in cases where the Magistrate opposes the transfer of case application by filling an affidavit, then the transfer of the case won’t be happen as the Judge personally involved himself to give a fair and impartial judgement.

TRANSFER OF CASES AND APPEALS BY HIGH COURT

Section 407 of CrPC gives power to the High Court to transfer cases and appeals. There are some conditions to be satisfied, so that the High Court can transfer the cases.

1. Under article 21 of India Constitution, the people have right to a fair and impartial trail and when it appear before the High Court that those conditions cannot be had in any criminal court subordinate to it.

2. When there is a possibility of arising of difficult question of law which is generally unusual.

3. When by any of the provisions under the code, the transfer of the appeal or the case is made inevitable.

4. When it will tend to the general convenience of the parties or witnesses for the ends of justice.

When the above mentioned conditions are present High Court can pass any of these orders-

1. If any offence which is inclusively under sections 177 to 185 of the Code that is to be inquired or tried by any court is not qualified but in other respects competent to inquire into or try such offence.

2. If there is a particular case or appeal is pending before any court, it can be transferred from a criminal court sub ordinate to its authority to another criminal court having equal or superior jurisdiction.

3. If any case is committed for hearing before the Session Court for hearing.

4. If a particular case or appeal is committed for hearing before the high court itself.

The high court can use its power to transfer cases if following conditions occur-

1. When a report for transfer the case or appeal is submitted by the lower court to the High Court.

2. An application for transferring the case or appeal is laid down by the interested party before the High Court.

3. The High Court, itself can initiate the transfer of case or appeal, if he feels that it would be best for the parties.

However, there should be no application of transfer of case or appeal from one criminal court to another in the same session division laid down before the High Court, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

The procedure to make an application for transferring a case or an appeal by a person is laid down under subsection 3 to 5 of Section 407 of CrPC.

1. The application for transferring a case or an appeal to the High Court shall be made by motion which is supported by an affidavit by the applicant, which is mentioned under subsection 3 of Section 407. If the applicant is the Advocate General of the State, then there is no need of application.

2. According to subsection 4 of Section 407, when an accused made an application requesting to transfer the case or appeal, the High Court has the power to lead him to execute a bond with or without sureties, for the payment of any compensation which the High Court may award under subsection 7.

3. According to subsection 5 of Section 407, a notice of the application which is written, will be given to the public prosecutor by the accused person with a copy justifying the reasons for making such application and the courts shall not pass any order on the merits of the application unless at least 24 hours have passed between giving of such notice and hearing of the application.

According to Subsection 6 of Section 407, the High Court can put a stay order on the proceedings of a case in the subordinate court where there is an application of transfer of the case or appeal for the interest of justice. However, it won’t affect the subordinate court’s power of remand under Section 309 by such stay order.

In subsection 7 of Section 407, it tells us about the power of High Court to dismiss the application for the transfer of case or appeal under subsection 1 of Section 407, where the application was frivolous or vexatious then the applicant have to pay a compensation to the person who was opposing the application not exceeding more than one thousand rupees by the order of the High Court, considering all the facts and circumstances of the case.

Subsection 8 of Section 407 talks about the procedure to be followed in the case which is transferred from the any court to the High Court by the order of High Court itself. The same procedure would be followed by the High Court which would have observed by that court if the case had not been transferred.

Subsection 9 of Section 407 tells that, there will have no effect of Section 407 if there is an order which is passed by the Government of India under Section 197 of CrPC.

TRANSFER OF CASES AND APPEALS BY THE SESSIONS JUDGE

Sessions Judge also has the power to transfer the cases and appeals, which is mentioned under Section 408 of CrPC.

1. Under Subsection 1 of Section 408 it is mentioned that a Sessions judge has the power to transfer a case or an appeal to a criminal court from another criminal court in his sessions division whenever he finds that it is expedient to transfer a case to the ends of justice.

2. According to subsection 2 of Section 408, The Sessions judge may exercise his power to transfer the case on the report of the lower court, or the application which was submitted by the interested party, or on his own initiative for the interest of justice.

3. As per the subsection 3 of Section 408, While the Sessions judge passing any order regarding transfer of case or appeal under subsection (1), the provisions under subsections (3), (4), (5), (6), (7), (9) of Section 407 will also be applicable on Sessions court as it is applicable on the High Court regarding using its power to transfer the cases mentioned under subsection (1) of 407. However, subsection 7 of Section 407 shall so apply as if for the words “one thousand” rupees occurring therein, the words “two hundred and fifty rupees” were substituted.

WITHDRAWAL OF CASES AND APPEALS BY SESSIONS JUDGES

Sessions judges also have the power to withdraw any case and appeal under Section 409 of CrPC.

1. Under subsection 1 of Section 409, a Sessions Judge can withdraw any case or appeal from any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. He also has the power to recall any case or appeal if he wants to.

2. Under subsection 2 of Section 409, the Sessions Judge have the power to recall any case or appeal from any Additional Sessions Judge at any time before the trail of the case or hearing of the appeal.

3. As per the subsection 3 of Section 409, if a Session Judge uses his power and withdraw a case or appeal mentioned under subsection (1) or subsection (2), he may either hear the appeal or try the case by himself or he may transfer the case for trail or appeal for hearing  to a other court in accordance with the provisions of this Code.

In Surendra Kumar v. Vijayan[3], 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 409.

WITHDRAWAL OF CASES BY JUDICIAL MAGISTRATES

Section 410 of CrPC provides Judicial Magistrate to withdraw cases.

1. Under subsection 1 of Section 410 that any cases may be recalled or withdrawn by any Chief Judicial Magistrate which he has made over to any Magistrate sub-ordinate to him. He has the power to inquiry or to trail such cases by himself or he may refer the case for trail or inquire to another Magistrate who is competent to do the task.

2. Any Judicial Magistrate has the power to recall any case which was made over by him to any other Magistrate under subsection (2) of Section 192 of CrPC, and may inquire into or try such cases on his own.

In Food Inspector v. K.P. Alavikutty[4], the Magistrate considered the plea of not guilty of the accused and after that he posted the case for trail. The case was transferred to another Magistrate as per Section 410 on re-organisation of the jurisdiction of the courts. The Magistrate to whom the case was transferred was bound by the orders of his predecessor and cannot go behind the pre-cognizance stage.

MAKING OVER OR WITHDRAWAL OF CASES BY EXECUTIVE MAGISTRATES

Any Executives Magistrate has the power to withdraw cases under Section 411. According to it any District Magistrate or Sub-divisional Magistrate has the power to-

▪ Withdraw any proceedings for disposal which has been started before him, to any Magistrate subordinate to him.

▪ Withdraw or recall any case, which he has made over to any Magistrate subordinate to him, and dispose of such proceeding himself or refer the same for disposal to any other Magistrate who is competent.

REASONS TO BE RECORED

According to Section 412 of CrPC, a Session Judge or Magistrate who makes an order as per section 408, 409, 410, 0r 411 shall have to record his reasons for making such order.

In Ali Hussain and Anr v. Emperor[5], the court held that when the High Court uses its authority of revision, it is not bound by Section 412. But it may examine the record to check whether a fair or impartial trail has been conducted or not and based upon the proper facts the decision has been declared or not.

CONCLUSION

Transfer of cases insures that the justice has been delivered to the parties. Supreme Court, High Court and the Sessions Court have the authority to transfer the cases s although their power may differ. It does not change the nature of the trail or the relief amount which is provided to the parties involved in the trail.


[1] 1954 AIR 186, 1954 SCR 454

[2] (1964) 4 SCR 884, 1964 CRLJ 233

[3] 2005 (4) KLT 475

[4] 1987 CriLJ 1298

[5] AIR 1933 Cal 308

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