TRANSFER OF CRIMINAL CASES
Chapter XXXI of the code of criminal procedure talks about the transfer of criminal cases. The provisions of transfer of criminal cases are mentioned from section 406 to section 412 of the code the proper to appeal before the Apex court i.e. Supreme court of India is out there only in exceptional cases.
Transfer of criminal cases like for instance you're getting to the court and have filed a case against a specific person but due to influence of that person has therein particular area due to which everything happening within the court is within the favour of him. Therein case you so as to achieve justice appeal for the transfer of cases and there the Transfer of criminal cases involves play its part.
The first three sections i.e. 406,407and 408 talks about the transfer of cases and appeals by the Supreme Court, High Court and session judge respectively.
The next three sections i.e. 409,410 &411 Withdrawal of cases and appeals by the session judge, judicial magistrate and therefore the executive magistrate.
And the last section 412 of this chapter talks about the explanations to be recorded.
The power mentioned within the section 406 to the Supreme Court is only discretionary in nature. The facility of the Supreme Court to transfer the cases and appeals also extends to the transfer the cases from any subordinate court within the country where any matter is pending. However, the court where the case is pending can make sure that the Supreme Court, while transferring the case is taking all the measures to uphold fairness and principles of natural justice. The parties in any suit are always guaranteed the chance to bring back the notice of any court with appropriate jurisdiction that there are reasonable grounds which uphold the apprehension within the mind of the person who certain factors inhibit his right to a good trial.
CASE - Gurucharan Das Chadda v/s State of Rajasthan( AIR 1996)
Held- that it shall exercise the facility to transfer a case if the party interested shows that there are circumstances indicating reasonable apprehension that the court dealing the case wouldn't be ready to manage and play the part os imparting fair justice.
Case- zahir hub ibullahh sheikh/s state of Gujarat (AIR 2004)
Held – Supreme Court ordered that it can transfer the case or can order the transfer of the case even without the request of the party if it's shown that convicted that such a step in necessary within the interest of justice.
Case – Raja v/s Mysore
Held – Supreme Court held that if there's necessity to transfer case to a different supreme court within the interest of justice for fair trail and impartial hearing the transfer of the case shall be allowed.
The very purpose of legal code is about for free of charge and fair dispersal of justice which isn't influenced by any extraneous considerations.
Section 407 of the Code of Criminal Procedures allow the party to hunt for transfer of case anywhere within the state while Section 406 of the Code enables the party to hunt transfer of the case anywhere within the country.
Section 407 of the Code of Criminal Procedure gives the power to the High Courts to transfer cases and appeals.
Circumstances during which HC may order the transfer of a case or appeal
The Supreme Court has the authority to transfer the cases when it's satisfied that:
• The right to a good and impartial trial, which is guaranteed under article 21 of the Indian Constitution can't be exercised by any of the party to the suit if the case is tried by any of the courts which are subordinate to it;
• Certain questions concerning this matter within the court are of bizarre difficulty;
• The transfer of the appeal or the case is formed inevitably by any of the provisions under the Code;
• The order of transfer is going to be within the interest of the overall convenience of the parties or witnesses involved within the suit.
Orders that the supreme court can pass
The Supreme 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 thereto be inquired by the other court which is inclusively under both section 177 and section 185 of the Code isn't qualified but is otherwise competent to discuss or try offences just like the ones which are in question;
• Where a specific case or appeal is pending before any court which is subordinate thereto to the other court which has equal or superior jurisdiction as compared to the High Court;
• The particular case is laid down before the court of Sessions for hearing;
• The particular case or appeal is laid down before the supreme court itself.
At whose instance the powers of transfer are exercised
The Supreme Court exercises its power of transfer of cases at the subsequent instances:
• When the inferior court submits the report for transfer of an appeal or case to the High Court;
• Where the interested party lays before the Supreme Court, an application requesting the transfer of a case or appeal;
• The Supreme Court in its own discretion can transfer a case or appeal if it's satisfied with the very fact that it might be within the best interest of the parties to the suit.
However, the supreme court while transferring a case must be mindful of the very fact that no application of transfer of the case from one court to a different is formed within the same sessions division unless an application for the transfer of the case has been made to the sessions court and therefore the same has been rejected by him.
Transfer of cases and appeals by the session’s judge
The Sessions judges are also conferred with the power to transfer cases and appeals by the Code under Section 408.
Subsection 1 of Section 408 provides that whenever a Sessions Judge finds it expedient to transfer a case to meet the ends of justice. He has the authority of transferring such cases from one court to a different court within his sessions division;
Subsection 2 of Section 408 talks about the instances on which the Sessions court can transfer the cases. The Section provides that the authority to transfer the cases with the Sessions Court can be exercised by it at the instance in this regard submitted to it by the lower court, application in this regard submitted by the interested party or the court may exercise the power at its own discretion;
The provisions under subsections (3), (4), (5), (6), (7) and (9) of section 407 shall be made applicable to the Sessions Judge while making any order in regards to the power vested on it by Subsection 1 of Section 408 in the same way as they are made applicable to the High Court while it exercises the provisions mentioned under subsection 1 of Section 407 of the Code.
Withdrawal of cases and appeals by Sessions Judges
Section 409 of the Code of Criminal Procedure contains provisions regarding the power of the Sessions Court to withdraw the cases and appeals.
Subsection 1 of Section 409 provides that the Sessions Judge, not only has the power to withdraw any case or appeal but also has the power to recall any case or appeal which he had earlier transferred to any Additional Sessions Judge or Chief Judicial Magistrate who is subordinate to him;
Subsection 2 of Section 409 provides that the power of recalling the cases by the Sessions Judge from any Additional Sessions Judge can be exercised by him at any time before the commencement of the trial of the case or hearing of the appeal before the court of Additional Sessions Judge;
Subsection 3 of Section 409 provides the course of action which can be followed by the Sessions Court if it exercises the power vested on it by Subsection 1 and 2 of Section 409. Accordingly, after the recall of an appeal is made by the Sessions Judge, he may either try the case or hear the appeal on his own, or again transfer the case or the appeal to some other court in accordance with the provisions of the Code.
Case - Surendra Kumar vs Vijayan,
Held- the court held that the authority of transferring such cases from one court to a different court within his sessions division conferred on the Sessions Judge by Section 408(1) of the Code is an independent judicial power and is not subject to any bar provided under Subsection 2 of Section 409.
Withdrawal of cases by Judicial Magistrates
Section 410 of the Code of Criminal Procedure contains provisions regarding the withdrawal of cases by Judicial Magistrate. According to the Section:
Subsection 1 of Section 410 of the Code grants the powers to the Chief Judicial Magistrate to transfer any case from any Magistrate subordinate to him as well as the power to recall any case which he had earlier transferred to any Magistrate subordinate to him. When the Chief Judicial Magistrate recalls a case, he has the authority to himself hear and try such case or he may refer the case to any other Magistrate who is competent to hear and try the case;
Any Judicial Magistrate has the authority to recall any case which he had transferred to any other Magistrate under Section 192 of the Code and may inquire into the case on his own.
Section 411 states about the making over or withdrawal of cases by Executive Magistrates
Section 411 of the Code contains provisions about the withdrawal of cases by the Executive Magistrate. The Section provides that any District Magistrate or Sub-divisional Magistrate has the authority to:
Withdraw any proceedings which started before the court to any Magistrate who is subordinate to it for the disposal of the case;
Withdraw or recall any case which he had earlier transferred to any Magistrate subordinate to it and dispose of the proceedings of the case himself or refer the same for disposal to any other competent magistrate.
Section 412- reasons to be recorded
This section states that the session judge or magistrate making an order under section 408,409, 410or 411 shall record his reasons for making it.
The two important case laws –
Case- K Anbazhagan v/s superintendent of police 2004
A criminal case was filed against EX C M of Tamil Naidu who was in a position from 1991 to 1997.
Committed many offences and 76 witnesses gave statement against her
She came back to power in 2001.
And immediately she changed the public prosecutor.
76 witness took there statement back
Anbazhagan the DMK leader filed the petition before the SC to transfer the case from Karnataka to any other state.
SC allowed it and transferred the case to Bangalore.
Case – S K Shukla v/s state of UP 2006
A criminal case was filed against the MLA and a Minister under the Prevention of Terrorist And Disruptive Act
They are known for terrorism and they did all terrorism against the witnesses also killing one of the witness, and there came the matter of consideration.
A petition was filed in the SC as there were serious doubts on the livelihood of getting justice.
Hence the case was transferred from the state of UP to state of MP.