“Law Master’s Publications
‘Transfer of Criminal Cases’
Prof. S. D. Bhosale
109
(..15..)
TRANSFER OF CRIMINAL CASES
(Ss.406 to 412)
QUESTION BANK
Q.1 Explain the provisions contained in Criminal Procedure Code relating to transfer
of cases.
SHORT NOTE
Transfer of Cases
SYNOPSIS
I. Power of Supreme Court to transfer criminal cases and appeals (S.406) -
1. When Supreme Court can transfer?
2. Who may apply?
3. Compensation in case of false application -
II. Power of High Court to transfer criminal cases and appeals (S.407) -
1. When High Court can transfer a criminal case?
2. Whom case can be transferred?
3. Who may apply?
4. Procedure -
5. Stay of proceeding –
6. Compensation in case of false application :
III.
Power of Session Court to transfer cases and appeals (S.408) -
1. When Sessions Court can transfer?
2. Applicability of provisions under S.407 (i.e. transfer of cases or appeals by High
“Law Master’s Publications
‘Transfer of Criminal Cases’
Prof. S. D. Bhosale
110
Court) are applicable to Session Court also (S.409) -
3. Reasons to be recorded (S.412) -
IV. Withdrawal of cases by Judicial Magistrate (S.410) -
V. Making over or withdrawal of cases by Executive Magistrate (S.44) -
Generally, only the Court in whose jurisdiction the crime is committed can try it.
However, the Superior Court can transfer criminal cases from one Court to another in
certain circumstances. Those circumstances are mentioned in this topic.
The object of this chapter is to maintain a fair and impartial trial.
I.
Power of Supreme Court to transfer criminal cases and appeals (S.406) -
When Supreme Court can transfer?
1.
If the Supreme Court considers it expedient for the ends of justice to do so, it may
direct that any particular case or appeal be transferred from one High Court to another
High Court and from a criminal Court subordinate to one High Court to another Court of
equal or superior jurisdiction subordinate to another High Court.
2.
Who may apply?
The Supreme Court may transfer the case only on the application of the Attorney
General of India or the party interested.
3.
Compensation in case of false application -
Where any application for transfer of a case is dismissed, and in the opinion of the
Supreme Court, the application is frivolous or vexatious, it may order the applicant to pay
compensation to the other party.
II.
1.
Power of High Court to transfer criminal cases and appeals (S.407) -
When can the High Court transfer a criminal case?
High Court may transfer a case or appeal when it appears to it that -
A fair or impartial inquiry or trial cannot be held in any subordinate criminal
a)
court.
b)
Some questions of law about unusual difficulty may arise.
an order under this section is required by any provisions of this Code.
it will tend to the general convenience of the parties or witnesses.
it is expedient for the ends of justice.
c)
d)
e)
2.
Whom case can be transferred?
When the High Court is convinced to abort the above grounds for transfer, it may
order –
a)
that offence be inquired into or tried by a Court otherwise competent (though not
empowered under S.177 to 185 of the Code)
b)
that any particular case or appeal be transferred to any other Court.
“Law Master’s Publications
‘Transfer of Criminal Cases’
Prof. S. D. Bhosale
111
c)
d)
3.
that any case be committed for trial to a Court of Session; or
that any case or appeal be transferred to and tried by the High Court itself.
Who may apply?
High Court may transfer case –
a)
b)
c)
on its own (Suo Moto)
on the application of the party interested or
on the report of the lower Court.
An application to the High Court for transferring a criminal case from one court to
another in the same sessions division cannot be made unless an application was made
earlier to the Session Judge and rejected by him.
4.
Procedure -
Every transfer application shall be made by motion, which shall (except where the
applicant is Advocate General of the State) be supported by affidavit or affirmation.
When such an application is made by an accused person, the High Court may
direct him to execute the bond, with or without sureties, for the payment of any
compensation which the High Court may award to any person opposing the transfer
application (under Sub S.7 of S.407)
Every accused person making an application for transfer shall give to the public
prosecutor notice in writing of the application, together with a copy of the grounds on
which it is made. No order shall be made on the merits of the application unless at least
24 hours have elapsed between the giving of such notice and the hearing of the
application.
5.
Stay of proceeding –
Where the application is for the transfer of a case or appeal from any subordinate
Court, the High Court may, if it is satisfied that it is necessary to do so in the interest of
justice, order that, pending the disposal of the application, the proceeding in the
subordinate Court shall be stayed, on such terms as the High Court may think fit to
impose.
Provided that such stay shall not affect the subordinate court's power of remand
under S.309.
6.
Compensation in case of false application :
Where any application for transfer of the case is dismissed and, in the opinion of
the High Court, the application is frivolous or vexatious, it may order the applicant to pay
such a sum not exceeding Rs.1,000/- to the party opposing applications.
III.
1.
Power of Session Court to transfer cases and appeals (S.408) -
When can Sessions Court transfer?
“Law Master’s Publications
‘Transfer of Criminal Cases’
Prof. S. D. Bhosale
112
On the report of the lower Court or the application of the party interested, or his
own initiative (suo moto), a Session Judge, if he considers it expedient for the ends of
justice to do so, may order that any particular case be transferred from one criminal Court
to another in his sessions division.
2.
Applicability of provisions under S.407 (i.e., transfer of cases or appeals by
High Court) are applicable to Session Court also (S.409) -
Provisions of Sub-S (3), (4), (5), (6), (7) & (9) of S.407 (discussed under heads 3
to 6 applicable to High Court) are also applicable to an application to the Sessions Judge,
except that the amount of compensation that may be awarded in respect of a frivolous, or
vexatious application shall not exceed Rs.250/-
3.
Reasons to be recorded (S.412) -
A Session Judge making any order with respect to a transfer of a case is required
to record reasons for such an order.
IV.
Withdrawal of cases by Judicial Magistrate (S.410) -
Any Chief Judicial Magistrate may withdraw any case from, or recall any case
which he has made over to, any Magistrate subordinate to him and may inquire into or try
such case himself or refer it for inquiry or trial to any other such Magistrate competent to
inquire into or try the same.
Similarly, any Judicial Magistrate may recall any case made by him under sub-
section 2 of S.192 to any other Magistrate or inquire into or try such case himself.
V.
Making over or withdrawal of cases by Executive Magistrate (S.44) -
Any District Magistrate or Sub-Divisional Magistrate may –
makeover, for disposal, any proceeding which has been started before him to any
Magistrate subordinate to him;
a)
b)
Withdraw or recall any case from which he has made over to any Magistrate
subordinate to him and dispose of such proceeding, or refer it for disposal to any
other Magistrate.
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