Transfer of Criminal Cases

In one line

A case is tried where the law puts it, unless the trial there would not be fair, or would be pointlessly inconvenient, in which event a superior court moves it.

In exam wording: Chapter XXXIII of the Bharatiya Nagarik Suraksha Sanhita, 2023, sections 446 to 452, empowers the Supreme Court, the High Court and the Sessions Judge to transfer criminal cases and appeals, and provides for the withdrawal and recall of cases by Sessions Judges and Magistrates.

Why the law has this at all

Jurisdiction is fixed in advance and for good reasons: an accused should know where he will be tried, and a court's authority should not depend on anybody's preference.

But a rule fixed in advance cannot foresee the case where the local atmosphere makes an acquittal or a conviction inevitable regardless of the evidence, where the witnesses all live four hundred kilometres from the court, or where a Magistrate has to decide a question of law that a High Court would find difficult.

So the Sanhita keeps the rule and adds a valve. It is deliberately narrow at the top, because transfer is a serious interference: the Supreme Court acts only on the application of the Attorney-General or a party interested, section 446(2). It is wider in the High Court, which may act on the lower Court's report, on a party's application, or on its own initiative. And it is guarded against abuse, because both the Supreme Court and the High Court may make a frivolous or vexatious applicant pay compensation to the person who opposed him.

Note the drafting choice that runs through the chapter. The grounds for transfer are stated once, in section 447(1), and the Sessions Judge's power in section 448(1) is expressed simply as what is expedient for the ends of justice, which is the third of those grounds.

Some words this chapter uses

Transfer moves a case from one court to another; withdrawal and recall bring back a case a judge had made over to somebody subordinate.

A party interested in section 446(2) includes the accused, the complainant and the State.

By motion means by a formal application to the Court.

Section 446: the Supreme Court

Sub-section (1). Whenever it is made to appear to the Supreme Court that an order is expedient for the ends of justice, it may direct that any particular case or appeal be transferred:

• from one High Court to another High Court; or
• from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

Sub-section (2). The Supreme Court may act only on the application of the Attorney-General of India or of a party interested, and every application shall be made by motion, which shall be supported by affidavit or affirmation, except where the applicant is the Attorney-General of India or the Advocate-General of the State.