Transfer of Criminal Cases

Introduction:

The Code of Criminal Procedure,1973 dealt with the provision essentially required for pursuing a case. The code if criminal procedure includes the legality concerning the transfer of criminal cases under section 406 to section 411 in chapter XXXI. The reason behind the emergence of the provisions of transfer of criminal cases is to deliver justice to individuals and in the order to procure the same, right to appeal is gifted to the people by the law. The large numbers of cases pending hampers the delivery of justice and it creates a stressful situation for the Judiciary in delivering justice. And to overcome such situations and to avoid delay in delivery of justice the provisions of transfer of criminal cases from the court to another court was included under the CrPc. Although the opportunity to approach the Supreme Court for the right to appeal is given only in exceptional cases. The High court is considered as an original court of appeal by the code of criminal procedure.

Role of the Supreme Court in Transferring Cases and Appeals

The code of criminal procedure gave the discretionary authority to the supreme court of India to transfer appeals or cases. Code of criminal procedure grants unquestionable power to the Supreme court of India for transferring any case or appeal of any High court to another High court located across the territory of India for the sake of Natural justice and to deliver timely justice.

The appeals or the cases which are pending in front of any High court can be transferred to the supreme court of India by:

• Persons who think unapprehend of a fair trial is done by the courts
• Persons unable to procure fair justice for themselves
• Advocate General of India or Attorney general of India

The code if criminal procedure gave discretionary authority to the Supreme court also in transferring pending cases from the subordinate courts and the concerned courts can assure the supreme court that all the necessary precautions were taken in transferring of such case to ensure delivery of fair justice.

In the matter of Sukhdev Singh Sodhi vs The Chief Justice and Judges of The PEPSU High Court, it was declared by the court that the discretionary power of the supreme court India in transferring of the criminal cases cannot be extended to the cases of contempt charges which are upfront the High court.

Kaushalya Devi v. Mool Raj is the case in which the supreme court held that the cases where the Person applied for transfer before the supreme court but the magistrate dealing with such case has filed an affidavit opposing such application of transfer then such case cannot be transferred with the belief that the fair trial is already established with the personal involvement of the magistrate dealing with the particular case.

Reasons Concerning Transfer of Criminal Cases

1. Upholding the spirit of justice: The main obligation and reason behind the establishment of the system of judiciary worldwide is to give protection to the rights of individual and to give justice to the victims of society against the offenders and to uphold the same the provisions of transfer of criminal cases are introduced.
2. Suggestions by the chief judicial officers: The reports and suggestions of the chief judicial officers such as the sessions judge and others are taken under consideration for deciding the transfer of criminal cases.
3. Transfer by the trial court: The subordinate courts while dealing with a matter feel that the question of the substantial law is beyond their jurisdiction, they can request the higher court to take up the particular case.
4. Jurisdiction: The law provides limited or sharing jurisdiction to lower courts in certain cases and if a trial court is dealing with such a case beyond their conclusive jurisdiction, they have the authority to transfer the case to the court having required jurisdiction of dealing with the particular case.
5. Conflict amongst the parties and judges: There are some cases in which there are past conflicts amongst either party of the case and the judicial officers involved and in such cases, the chances of injustice and partiality are high so the matter is transferred to another court to prevail the fair justice
6. Natural justice infringement: In the cases where supreme court believed that the principle of fair justice was infringed by any court in a particular matter the supreme court has the authority to transfer sure case in order to restore natural justice.

The main obligation of the criminal law is to ensure free and timely justice without any external influence, as justice delayed is justice denied. The section 406 of the code of criminal procedure gave the parties to transfer their case anywhere in the country while section 407 of the code of criminal procedure allows parties to appeal for transfer within the territory of state involved.

Cases and Appeals Transferred by the High Court

The code of criminal procedure gives the authority to the high courts to transfer appeals or cases under section 407.

High court can transfer the appeals and cases when

1. Infringement of Article 21: the high court when satisfied that the transfer of the cases from the subordinate courts is necessary because if so, is not done the right guaranteed under Article 21 cannot be exercised by the parties of the case.
2. Difficulty of unusual nature: when a difficulty of unusual nature occurs in the matter of a court High court has the authority to transfer such cases.
3. Inevitable transfer: when the transfer us necessary because of the provisions led down in the code of criminal procedure.
4. Interests of individuals involved: when the court is satisfied that the witnesses and the parties of the case want the transfer of their case because that will be more convenient from then High court can transfer the case.

Following orders can be passed by the high court on being satisfied with the involvement of upper mentioned scenarios

• Transfer from the court subordinate to it or the criminal court with same or superior jurisdiction regarding a matter pending in such courts.
• High court was approached for such transfer of the appeals and order.
• To hearing of such case by the court of sessions.

Following situations led the High court to exercise its power of transfer

• When the high court is approached by the subordinate courts for transfer of cases.
• When either party approach High court for such transfer of cases or appeals.
• When High court is satisfied that it is best for the parties involved if the case is transferred.

Transferring Procedure for Transfer of Cases by High Court

The procedure that needs to be followed by the person making an application for transfer of cases by him is described under section 407(3) to 407(5) of the code of criminal procedure,1973.

• Section 407(3) states that there should be an appropriate affidavit to support for the application of the transfer unless the application is forwarded by the attorney general of India.
• Section 407(4) of the code of criminal procedure led down the essentials to be followed by the accused person for applying for the transfer of his case where he needs to make a bond without or with security for the fulfilment of the compensation amount prescribed by the High court.
• Section 407(5) laid down that a public prosecutor should be informed about the application of such transfer by the person making such application for transfer.
• Section 407(6) High court has the authority to put a stay order on the proceedings carried on by the subordinate courts if the High court is satisfied that it is in the best interest of justice.
• Section 407(7) of the code of criminal procedure laid down the provisions in which the high court can cancel the application of transfer made before it under section 407(2).

Saving

Under section 407(9) of the code of criminal procedure states that anything which contained under section 407 of this act should not have any effect on section 197 of this act which restricted the court from passing an order on the case which is against a public servant unless prior permission is granted to the court by the concerned authorities.

Cases and Appeals Transferred by the Sessions Court

The Code of Criminal Procedure,1973 also inferred power upon sessions court for transfer of a case by the provisions led down under section 408 of the code.

Section 408(1) of CrPc

The sessions court when satisfied that a case needs to be transferred for justice to prevail that the sessions court can transfer the case from a criminal court to another. The powers laid down for High court under the section 407(3) to 407(7) and the section 407(9) is also conferred upon the sessions judge while exercising the power laid down to the sessions court under this section.

Section 408(2) of CrPc

These sections talk about the conditions in which a session court can transfer the case where the lower court has requested the sessions court for the same, or when either party has requested the court by making an application for such transfer or the court by its discretionary power can make such transfer by exercising its power under this section.

Withdrawal of Cases by Courts of Sessions

Section 409(1) of CrPc

This section gives the power to the sessions court for withdrawal of any case and also to recall any case already transferred to any additional judge if sessions court subordinate to him.

Section 409(2) of CrPc

This section restricted the power conferred to session judge to recall the case already transferred to additional judge by stating that such recall can be made before the presenting of the case before the additional judge or sessions court.

Section 409(3) of CrPc

This section laid down the procedure of action the sessions court can adapt while exercising the power vested to it under section 409(1) and (2) of the CrPc. After the recalling of the already transferred case to the additional magistrate the sessions judge can start the trial of such case by himself or can again transfer the recalled case.

Cases and Appeals Withdrawn by the Judicial Magistrate

 Section 410 of the CrPc

This section deals with the provisions related to withdrawal of the cases or appeal by the Judicial magistrate and this section laid down that the chief judicial magistrate has been granted the authority to transfer any case by any magistrate to another who is subordinate to him and the chief judicial magistrate can also recall any already transferred case and start the trail of such case by himself or he can transfer it again to any other magistrate which have the jurisdiction for trial of such case.

Cases and appeals withdrawn by the executive magistrate

Section 411 of the CrPc gave the authority to the executive magistrate such as district magistrate or the sub-divisional magistrate for withdrawal of any case or appeal tried before any magistrate who is subordinate to him and they can also recall any case which was earlier transferred to any other subordinate magistrate and he has the power to transfer it again to any magistrate subordinate to him.

Conclusion

The transfer for criminal cases is the provision included in the code of criminal procedure to ensure delivering to fair and timely justice and to protect the fundamental right given to the citizens of India under Article 21 of the Constitution. The power to transfer the criminal cases has been granted to the supreme court of India, various High court of India and also the courts of sessions and to the judicial magistrate and the executive magistrate under different sections of the code of criminal procedure,1973.

References:

1. Rohit Upadhyay, procedure of transfer of criminal cases, ipleaders

https://blog.ipleaders.in/transfer-of-case/.

• Team@ law times journal, Transfer of criminal cases, law times journal, October 21,2019

http://lawtimesjournal.in/transfer-of-criminal-cases/.

• Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, 1954 AIR 186.
• Kaushalya Devi v. Mool Raj, 4 September, 1963.