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An Analysis: Transfer of Criminal Cases

The authority specified by the Supreme Court under Section 406 is optional. The Supreme Court has expanded the ability to transfer and appeal cases from any subsidiary court in the country. However, when the current court makes changes to the case, it can ensure that all steps are taken to uphold the principles of justice and natural justice. They assure the parties that in no event can effective judicial notice be withdrawn, and there are reasonable grounds to remember that certain factors might impede the right to a good hearing.

The XXXI of the Code of Criminal Procedure talks about changing criminal cases. The laws relating to the transfer of criminal cases contained in Section 406, known as Section 412 of the Act which empowers the Supreme Court to appeal, means that the Supreme Court of India exists only in exceptional cases.

Transfer criminal cases, for example, when you appear in court and file a complaint against that particular person, but because of that person's influence, whatever happens in court is in their favor.

This article explains when and how criminal cases can be withdrawn from court. The article discusses grounds, procedure, circumstances of transferring cases and determines whether the nature of cases changes.

The Criminal Procedure Code of 1973 summarizes the proceedings in which the case is prosecuted. Section XXXI of the Act contains provisions relating to the transfer of criminal cases from section 406 to 411. The main reason behind this is that changing cases has given people the right to appeal and gain the right to appeal. Due to the burden of pending cases and appeals, judicial proceedings are delayed and judicial processes are interrupted.

Therefore, in order to solve this problem, some laws were brought to transfer criminal cases from one court to another. The right to appeal to the Supreme Court is available only in exceptional cases. According to the Code of Criminal Procedure, the High Court is the real court for criminal appeals.

Objectives of the study
The article mentions when and how criminal cases can be transferred from the court. The article determines the nature of cases, the application, the reasons for transferring the case, and the nature of the cases as the case transfer.

Research problem
Although each court has jurisdiction over legal or judicial prejudice, laws regulating the transfer of cases can be found in the Civil Procedure Act of 1908 and the Criminal Procedure Act of 1973. Extensive discretion to transfer cases from one court to another within the territory of India.

Research questions:
  1. Can criminal cases be transferred to court?
  2. When and how do cases change?
  3. Does changing cases change the status of the case?

Research Methodology
The subject matter of my research is, "Analysis of transfer of criminal cases from courts". My study is based totally on "DOCTRINAL METHOD." There are many concepts or doctrines in this challenge. And additionally, this venture contains maximum of the issues related to this subject matter. This undertaking is really primarily based on studies methodology.

The source materials are secondary. I even have used secondary assets like books, articles, and journals, and Internet-based research.

The Indian judiciary consists of the Supreme Court at the national level, the High Courts at the state level and the District and Sessions Courts at the district level. The Supreme Court and High Court are often called constitutional courts because their jurisdiction is recognized by the Constitution of India[1]. At the district level, in civil matters, the jurisdiction of the District Courts is the same as that of the Tribunals, and their jurisdiction is to deal with almost all matters except excluded cases; Criminal cases are decided by the Sessions Court.

There may be several reasons for moving cases from one court to another. Some of them are important:
  1. Justice might not be delivered
  2. The existence of a substantial question of law
  3. The involvement of constitutional issues in this regard
  4. Lack of necessary jurisdiction
  5. Recommendations of top judicial authorities
  6. Requests by the trial courts
  7. Differences or inconsistencies between parties and judicial authorities.

Provisions for the transfer of cases under the Criminal Procedure Code, 1973

Under the Criminal Procedure Code of 1973 for the processing of criminal proceedings, Chapter XXXI provides for the transfer of criminal cases. The chapter contains sections 406-412.

The rules are:
  1. Section 406 - Power of Supreme Court to transfer cases and appeals

    Section 406 of the Criminal Procedure Code gives the Supreme Court the power to transfer cases and appeals. The Code gives the Supreme Court broad discretionary power to transfer any case or appeal to the High Court of any other High Court of any State of the country to meet the principle of justice and natural justice.

    An application to transfer any case or appeal pending in the High Court can be moved to the Supreme Court by:
    • Those who fear court injustice; Or
    • Unable to find out who is being served any proper justice; Or
    • Attorney General or Advocate General of India.
    The power conferred by the Code under Section 406 on the Supreme Court is purely discretionary and there is no legitimacy in the course of the transfer and the applicant has no obligation to establish conclusively that only the applicant is expected. To justify the arguments, he made under the application to the Supreme Court. The application must be in the form of an affidavit or affirmative motion under section 406 of the Code unless the applicant is the country's Advocate General or Attorney General.

    The power of the Supreme Court to transfer cases and appeals extends to the transfer of cases by any subordinate court of any pending country. However, the Supreme Court at the hearing of the case can ensure that the Supreme Court is taking all steps to uphold the principles of fair and natural justice when transferring the case. In any case, the client is always guaranteed to bring the court to the attention of the court with appropriate jurisdiction, as there are reasonable grounds for heightening anxiety in the person's mind that there are certain factors that may impede his right to a fair trial.

    This provision provides for the transfer of cases and appeals from the Supreme Court:
    • or from one High Court to another
    • The Criminal Court submits one High Court to another High Court in a Criminal Court of equal or greater jurisdiction.
    If it is considered in the interest of justice. Such application should be made by:
    1. Attorney General of India
    2. State Party Advocate General of the case
    3. Any other party involved or interested in the case, in which case it must be supported by affidavit or confirmation
    If a person is found to have filed a fraud application under Sec. 2000 should be paid to any party who opposes the transfer application.

    In "Suman Gambhir v. State of Rajasthan & Ors.[2]", complainants and accused are based in Delhi, the civil suit between the parties is pending in Delhi and the state has no objection to move the case from Rajasthan to Delhi.

    In "Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v. State of Punjab & Anr.[3]", the petitioners filed an application for the transfer of the criminal case against the applicant and his brothers under Section 363-A, 366 and 120-B to the learned Chief Judicial Magistrates' Court in Jalandhar Filler, Punjab., Barpeta, Assam. The grounds are potentially life-threatening as petitioners 1 and 2 run away to marry. The Supreme Court, which considered it for the benefit of justice and the client, transferred the case according to the petition.

    In "Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr.[4]", transfer Petitions of 2004 (Crl.) No. 254-55 along with that of No. 89 of 2005, the Supreme Court held that petitioners sought a transfer based on an inability to engage defendant lawyers. The District Collector's Association is not permitted by the concerned court when the affidavit is submitted that the petitioner is provided with legal counsel.

    In Sukhdev Singh Sodhi vs The Chief Justice and Judges of The PEPSU High Court[5], court said 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 are not only discretionary but also limited because Section 406 does not give the Supreme Court the power to transfer pending investigation from one police station to another for the sole purpose of filing a FIR. If the Supreme Court considers that the filed petition is trivial and there are no substantive rights, the party accompanying the petition may order the party to pay compensation in excess of one thousand rupees. Objected to such application.

    In the case Kaushalya Devi v. Mool Raj[6], the magistrate dealing with the case filed an affidavit opposing the application by the affidavit itself, saying there was no doubt in the transfer of the case. This is in the full interest of justice because in all such cases the requirements for a fair and impartial trial are already at risk, as indicated by the personal involvement of the judge.
  2. Section 407 - Power of High Court to transfer cases and appeals

    Section 407 of the Criminal Procedure Code empowers the High Courts to transfer cases and appeals.

    The circumstances under which HC may order the transfer of a case or appeal.

    The High Court is empowered to transfer cases when satisfied:
    • The Right To A Fair And Impartial Hearing Guaranteed Under Article 21 Of The Constitution Of India Shall Not Be Exercised By Any Of Its Parties If Tried By Subordinate Courts;
    • Some Questions Related To The Current Issue In Court Have Extraordinary Difficulties;
    • The Transfer Of An Appeal Or Case Is Inevitable By Any Provision Under The Code;
    • The Transfer Order Is For The General Convenience Of The Parties Or Witnesses Involved In The Lawsuit.
    Orders that the High Court can issue:
    Once the presence of the above grounds is satisfied, the High Court may order any of the following:
    • Any court subordinate to or subordinate to any other court under section 177 and section 185 of the Code shall be guilty of prosecution but shall not be entitled to a trial or attempt to commit such offences in question;
    • If a particular case or appeal is pending before any criminal court, it is subject to any other criminal court having jurisdiction over the High Court;
    • The particular case should be placed before the Sessions Court for trial;
    • A particular case or appeal should be placed in the High Court.
    In whose instance the transfer authority is exercised
    The High Court exercises jurisdiction over the following cases:
    • To transfer to the High Court when the lower court submits a report to the appeal or case;
    • An application to request the transfer of a case or appeal in the event of placing an interested party before the High Court;
    • The High Court may transfer the case at its own discretion or appeal if it satisfies the client's interest in the litigation.
    However, in transferring the case, the High Court should keep in mind the fact that no application for transfer of the case from one criminal court to another criminal court shall be made unless the application for transfer of the case is made in the same Sessions Division. Sessions Court and they have rejected it.

    When exercising the power of the High Court to transfer cases and appeals:
    1. There will be no fair, just and impartial trial
    2. Some question of unusual difficulty is involved or arises
    3. Such order is required under certain provisions of the Code
    4. It is necessary for the convenience of the parties and witnesses
    5. Suitable for the ends of justice
    However, in Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors.[7], the Supreme Court has rejected the plea of ​​transferring criminal cases from Jammu to Srinagar, with most of the witnesses being Srinagar. The court said that there was no need to transfer the case as all the witnesses of Jammu were examined.

    The case or appeal under this section may be:
    1. Transferred from one Criminal Court to another Criminal Court subordinate to the High or Jurisdictional High Court
    2. Sessions committed to the court
    3. The High Court itself has tried
    In Pal Singh & Anr. v. Central Bureau of Investigation & Ors.[8], The Supreme Court has said that a criminal case or appeal may be transferred from the district court to the district court in its jurisdiction. There is no provision for inter-state transfer of cases. Also, when a case is in its final stages of a trial, the transfer of most witnesses is inadequate.

    Transfer applications can be made by affidavits or confirmation:
    1. Report of the lower court
    2. Interested party
    3. High Court on its own
    In the case of Nirmal Singh v. the State of Haryana[9], the Supreme Court quashed the Punjab and Haryana High Court's order that the criminal case is transferred to Chandigarh by the Sessions Judge of Ambala. Neither the client nor the reason for their hearing was given. Also, many of the accused argued that it would incur additional costs to engage legal counsel.

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

    The High Court follows the proceedings in the same way that the case or appellant does not transfer.
  3. Section 408 - Power of Sessions Judge to Transfer Cases and Appeals

    The Sessions Judge is also entitled to transfer cases and appeals from the Code under Section 408.
    • Subsection 1 of Section 408 provides that when the Sessions Judge finds it appropriate to transfer the case to meet the ends of justice. He has the authority to transfer such cases from one criminal court to another criminal court within the jurisdiction of his session;
    • Subsection 2 of Section 408 provides instances where the Court of Sessions can transfer cases. In the instance of a report filed by the lower court having the power to transfer cases to the Sessions Court, the section provides that the interested party or the court may file the application, authority at its own discretion;
    • The provisions of subsection (3), (4), (5), (6), (7) and (9) of section 407 apply to the Sessions Judge when making any order relating to the authority when exercising the provisions referred to under subsection 1 of section 407 of the Code. By subsection 1 of section 408 in the same manner as applied to the High Court.
    Section 408 empowers the Session Judge to transfer from one Criminal Court to another Criminal Court, if appropriate in the interests of justice in his / her Sessions Division.
    Sessions Judge may act:
    1. On its own
    2. In the lower court report
    3. On the application of the party
    Some of the provisions of Section 407 apply to orders under Section 408 and include:
    If the accused files a transfer petition, the High Court or the Sessions Judge may, from time to time, order the bond to be executed with or without a Shuri. Further, the accused must provide written proof of such application to the Public Prosecutor. No order shall be made on the merits of the application unless a 24-hour period has elapsed between the filing of the notice and the hearing of the application.

    If a person is found to be filing fraudulent transfer applications, he/she may be ordered to pay compensation up to Rs. 1000 from the High Court or Rs. 250 by Sessions Judge for any party who opposed the application.

    No provision of Section 407 or 408 shall affect the Government Orders of U / s 197.
  4. Section 409 - Withdrawal of Cases and Appeals by Sessions Judge

    This provision empowers the Sessions Judge to withdraw or withdraw the case, or to appeal to any Assistant Sessions Judge or Chief Judicial Magistrate under him. But, in the case of the Additional Sessions Judge, that can only be done if the trial does not begin. Pursuant to the provisions of this Code, the Sessions Judge may try the case or appeal to his / her own court or to another court.

    In Subrata Pal v. Ratna Gope & Anr.[10], the Agartala Bench of Gauhati, High Court said that if the case or appeal is withdrawn from the Court of Additional Sessions Judge, the Sessions Judge will report to the High Court when the trial or proceedings are commenced. Court with reasons for such omission under Section 407 (2).
  5. Section 410 - Withdrawal of Cases from Judicial Magistrates

    It empowers the Chief Judicial Magistrate to withdraw or recall any case made to any Magistrate under him and refer it to the Magistrate who is able to try and prosecute any case.

    It empowers the Judicial Magistrate to recover and prosecute any case made to any other magistrate under section 192 (2) of the CrPC, 1973.

    In Mehfooz Khan & Anr. v. R. J. Parakh & Anr.[11], the Bombay High Court held that the power of a judicial magistrate under section 410 is not an administrative order but a judicial order. Withdrawal or recall of the use of words is similar to word transfer. Since the state is the leading party in all criminal cases, the state may file an application to transfer the criminal case if compelling reasons exist.
  6. Section 411 - Withdrawal of Cases from Executive Magistrates

    Similar to Sections 409 and 410, Section 411 empowers the Executive Magistrates to withdraw or recall any case made to the Subordinate Magistrate and to dispose of such proceedings in his / her own court or to submit it to another Subordinate Magistrate. 
  7. Section 412 - Reasons to be recorded

    Section 412 states that if a transfer order is made under Section 408/409/410/411, the reasons for it must be documented. This will ensure that no transfer order is made without fair, just and compelling reasons.

    Grounds for appeal and transfer of cases:
    • To uphold the spirit of justice: The ultimate goal of any judicial system on earth is the liberation of justice and the protection of the rights of each individual. Courts are one of the most respected institutions of justice and people have high expectations of justice, which can be sought by a person. Therefore, the court has greater moral obligations to keep the machine of justice, equality and good conscience alive.
    • Recommendations made by top judicial authorities: Courts consider inquiries and findings from reports of chief judicial magistrates or senior judicial officers when deciding whether cases and appeals should be transferred from one court to another Sessions court.
    • At the request of the trial court: the court considers that the case is out of its scope due to the involvement of a substantial question of law outside its scope. You can request a higher judiciary to transfer the case.
    • Lack of full jurisdiction: In some cases, the court has limited jurisdiction over the case before it. In such cases of shared or limited judicial issues, the court seeking the case shall have the liberty to transfer the case to a court having the crucial jurisdiction to hear the case. This process ensures that the client is given full justice before the court.
    • Disagreements between party and judicial officer: In cases where there is already disagreement between a judicial officer and any party, the likelihood of an unfair and partial hearing is relatively high. Therefore, there may be an opportunity to apply for the transfer of the case from the judicial system to the effect that the arresting party may conduct such proceedings.
    • Violation of Principles of Natural Justice: If a party submits evidence to the Supreme Court of any violation of the principles of natural justice by any court or judicial officer, then the court shall order the transfer of the case.
    The purpose of criminal law is the free and fair diffusion of justice that is not affected by any external considerations. Section 407 of the Criminal Procedure Code enables the party to transfer the case anywhere within the state, while section 406 of the Code enables the party to transfer the case anywhere in the country.

    Procedure to be followed:
    Subsection 3 to subsection 5 of section 407 of the Criminal Procedure Code defines the procedure for the person applying for the transfer of appeals and cases.
    • subsection 3 of Section 407 of the Code, except for the case where the applicant is the Attorney General of the State, makes an appeal by motion to transfer cases supported by affidavit or affirmation to the High Court;
    • Under subsection 4 of section 407 of the Code, the High Court has the power to direct the bond to execute the bond with or without surety if the accused files an application for transfer or appeal of any remedy the court may order him;
    • In terms of subsection 5 of section 407 of the Code, every person applying for a transfer must give written notice to the Public Prosecutor, giving notice of the intent to make such an application. Specify the basis on which the application is filed. This section instructs the courts not to make any order on the merits of the petition filed by the person for at least twenty-four hours between the hearing of the petition and such notice.
    Stay of subordinate court proceedings
    Subsection 6 of Section 407 of the Code contains provisions for interruption of proceedings in any subordinate court. The provision states that the application for transfer of cases by any subordinate court shall be in the High Court. The High Court, if deemed appropriate in the interests of justice, may withhold the hearing of such conditions as are appropriate in the subordinate court. However, if such an order is made by the High Court, it will have no effect on the remand authority of the Sessions Court, which is guaranteed by Section 309 of the Code.

    Where the High Court dismissed the application
    Application made under sub-section 7 of section 407 of the Code, subsection 2 of section 407 of the Code, contains provisions relating to cases dismissed by the High Court. If the High Court finds that the appeal petition or the transfer of the case is petty and trivial, may order the petitioner to pay a compensation of not more than one thousand rupees to any person who opposes the application. In such cases, the court will consider the facts and circumstances of the case and determine the remedy.

    Subsection 9 of Section 407 of the Code provides that the savings clause and nothing contained under Section 407 of the Code shall have no effect on the orders issued by the Government of India under Section 197 of the Code and take cognizance of any case involving criminal charges against any public employee unless the court obtains prior approval from competent authorities.

    Two major case laws:
    Case: K Unbalagan vs. Police Superintendent 2004[12]
    • A criminal case has been filed against Tamil Nadu's EX- CM, who was in power from 1991 to 1997.
    • Many crimes have been committed and 76 witnesses have made statements against her
    • She came to power again in 2001.
    • And immediately she replaced the Public Prosecutor.
    • 76 witnesses retracted their statements
    • DMK leader Anbalagan filed a petition before SC to transfer the case from Tamil Nadu to any other state.
    • SC allowed it and moved the case to Bangalore.
    Case: SK Shukla vs. UP 2006 State [13]
    • Criminal case filed against MLA and Minister under the Prevention of Terrorism and Disruptive Act
    • They are known for terrorism and he committed all terrorism against witnesses and killed one witness and the issue of consideration came up.
    • The petition has been filed in SC because of serious doubts about the livelihood of seeking justice.

Thus, the case was moved from the UP state to the MP state.

Gurucharan Das Chadha v. the State of Rajasthan [14]
The party's reasonable anxiety that the case will not get justice is key to the case's transfer. Petitioners do not serve justice and there is no need to demonstrate that the case inevitably failed. This is one of the principles of the administration of justice. The court must decide whether such anxiety is reasonable or not, such as the allegation of anxiety that justice cannot provide.

Surendra Kumar v. Vijayan [15]
Under Section 408(1), the power conferred on the Session Judge to transfer a case which is pending in the Court of Additional Sessions Judge to another, whether the hearing has commenced or not, it is concluded to be independent judicial power and it is not subject to any bar imposed by Section 409 (2) on its administrative powers for recalling a case after the trial or hearing of the case has commenced.

Ali Hussein and Anr. v. Emperor [16]
The court said that while the High Court exercised its revision authority, it need not comply with Section 412 of the Criminal Procedure Code. But it can review the record for the purpose of seeing if there is a fair trial and whether a decision has been made based on the correct facts.

Food Inspector v. K.P. Alavikutty on 11 February 1987 [17]
The Magistrate adjourned the case considering the plea of ​​not guilty. Subsequently, upon the re-organization of the jurisdiction of the courts, the case was moved to another magistrate under section 410. The magistrates who have transferred it adhere to the predecessor order and cannot cross the pre-cognizance stage.

A study of case transfer laws under the Criminal Procedure Act of 1973 clearly shows that almost all courts, from the Supreme Court to lower courts, have the jurisdiction to transfer cases and appeal. Thanks to judicial precautions, the reasons for such transfers are constantly updated.

The transfer of business does not change the nature of the investigation or the privileges granted to the client of the company. It is a mechanism to ensure that customers get justice. The Supreme Court, the High Court and the Sessions court have the power to transfer criminal cases from one court to another.

However, the powers of each court differ. If the rights guaranteed by the provisions of the case are exercised by the parties to the dispute and the intentions of the parties are confused, the courts have the right to order the plaintiff to pay damages to the opposing party.

The amount of compensation that a court can set varies from court to court. Cases can be withdrawn or recalled by the Sessions Judge, Judicial Magistrate and Executive Magistrate. An order issued under these sections must be accompanied by the reasons for issuing such orders. The court must have a reasonable apprehension that it will not pursue justice within its jurisdiction until the case can be transferred.

  1. Article 124 and 214, Constitution of India
  2. Suman Gambhir v. State of Rajasthan & Ors., (2004) 13 SCC 365
  3. Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v. State of Punjab & Anr., (2006) 9 SCC 714
  4. Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr., (2007) 11 SCC 640
  5. 1954 AIR 186, 1954 SCR 454
  6. [1963] INSC 188
  7. Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors., (1982) 1 SCC 501
  8. Pal Singh & Anr. v. Central Bureau of Investigation & Ors., (2005) 12 SCC 329
  9. Nirmal Singh v. State of Haryana, (1996) 6 SCC 126
  10. Subrata Pal v. Ratna Gope & Anr., (2002) 2 Gauhati Law Reports 372
  11. Mehfoozkhan & Anr. v. R. J. Parakh & Anr., 1980 Mh. L. J. 646
  12. [2004] Insc 108
  13. (2006) 1 SCC 314
  14. 1966 AIR 1418
  15. 2005 (4) KLT 475
  16. AIR 1933 Cal 308
  17. 1987 CriLJ 1298

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