Transfer of Criminal Cases

Sub-section (3). Where such an application is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay compensation to any person who opposed it, of such sum as it considers appropriate.

The defining feature of section 446 is that it is the only transfer power that crosses High Court boundaries. Within one High Court's territory, section 447 is the section.

Section 447: the High Court

Sub-section (1), the grounds and the orders. Whenever it is made to appear to the High Court:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate to it; (b) that some question of law of unusual difficulty is likely to arise; or (c) that an order is required by any provision of this Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order:

(i) that any offence be inquired into or tried by a Court not qualified under sections 197 to 205 but in other respects competent to inquire into or try it; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself.

Sections 197 to 205 are the sections on the place of inquiry or trial, so clause (i) is the power to override the ordinary rules of venue.

Sub-section (2), who may move it. The High Court may act on the report of the lower Court, on the application of a party interested, or on its own initiative.

Proviso, and it is examinable. No application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division unless an application for such transfer has been made to the Sessions Judge and rejected by him.

Sub-section (3). Every application shall be by motion, supported by affidavit or affirmation, except where the applicant is the Advocate-General of the State.

Sub-section (4). Where the application is made by an accused person, the High Court may direct him to execute a bond or bail bond for the payment of any compensation it may award under sub-section (7).

Sub-section (5), notice to the prosecution. Every accused person making such an application shall give the Public Prosecutor notice in writing of the application, together with a copy of the grounds; and no order shall be made on the merits unless at least twenty-four hours have elapsed between the giving of the notice and the hearing.

Sub-section (6), stay. Where the application is to transfer a case or appeal from a subordinate Court, the High Court may, if satisfied that it is necessary in the interest of justice, order that pending the disposal of the application the proceedings in the subordinate Court be stayed, on such terms as it thinks fit. Proviso: such a stay shall not affect the subordinate Court's power of remand under section 346.

Sub-section (7), costs of a bad application. Where the application is dismissed, the High Court may, if it is of opinion that it was frivolous or vexatious, order the applicant to pay compensation to any person who opposed it.

Sub-section (8), procedure on a transfer to itself. Where the High Court orders a case transferred for trial before itself, it shall observe the same procedure which that Court would have observed had the case not been transferred.

Sub-section (9). Nothing in the section affects any order of the Government under section 218.

Sections 448 to 452: the Sessions Judge and the Magistrates

Section 448, the Sessions Judge's transfer power.

Sub-section (1). Whenever it is made to appear to a Sessions Judge that an order is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

Sub-section (2). He may act on the report of the lower Court, on the application of a party interested, or on his own initiative.

Sub-section (3). Sub-sections (3), (4), (5), (6), (7) and (9) of section 447 apply to such an application as they apply to a High Court application, except that in sub-section (7) the word "sum" is read as "sum not exceeding ten thousand rupees".

Section 449, withdrawal and recall by a Sessions Judge.

Sub-section (1). A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, a Chief Judicial Magistrate subordinate to him.

Sub-section (2). At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal made over to any Additional Sessions Judge.

Sub-section (3). He may then try the case or hear the appeal himself, or make it over to another Court in accordance with the Sanhita.

The time limits differ. As against a Chief Judicial Magistrate there is none stated; as against an Additional Sessions Judge, only before the trial or hearing has commenced before him.

Section 450, withdrawal by Judicial Magistrates.

Sub-section (1). Any Chief Judicial Magistrate may withdraw any case from, or recall any case made over to, any Magistrate subordinate to him, and may inquire into or try it himself, or refer it to any other competent Magistrate.

Sub-section (2). Any Judicial Magistrate may recall any case made over by him under section 212(2) to another Magistrate, and may inquire into or try it himself.

Section 451, Executive Magistrates. Any District Magistrate or Sub-divisional Magistrate may:

(a) make over, for disposal, any proceeding started before him to any Magistrate subordinate to him; (b) withdraw any case from, or recall any case made over to, any subordinate Magistrate, and dispose of the proceeding himself or refer it to any other Magistrate.

Section 452, reasons. A Sessions Judge or Magistrate making an order under section 448, 449, 450 or 451 shall record his reasons for making it.

Section 452 is easy to overlook and easy to be asked about. The Supreme Court and the High Court are not named in it; the duty to record reasons attaches to the Sessions Judge and the Magistrates.

A worked example

An accused says he cannot get a fair trial before a particular Magistrate because of local feeling against him.

Where does he apply first? To the Sessions Judge, because the Magistrate is in his sessions division. The proviso to section 447(2) bars an application to the High Court to move a case within the same sessions division unless the Sessions Judge has already rejected it.

How is the application made? By motion, supported by affidavit, section 448(3) read with section 447(3); and, being an accused, he must give the Public Prosecutor written notice with a copy of the grounds, and no order on the merits may be made until twenty-four hours have passed, section 447(5).

Can the trial be stopped meanwhile? The Court may stay the proceedings if satisfied it is necessary in the interest of justice, on such terms as it thinks fit, but the stay does not affect the subordinate Court's power of remand under section 346, section 447(6).

The application is dismissed as frivolous. He may be ordered to pay compensation to the person who opposed it, capped before the Sessions Judge at ten thousand rupees, section 448(3); and the Court may have required a bond or bail bond for that payment when he applied, section 447(4).

The Sessions Judge rejects it and he goes to the High Court. Now the proviso is satisfied. The High Court may act on any of the three grounds in section 447(1), and may transfer the case to another Court of equal or superior jurisdiction, commit it to a Court of Session, transfer it to itself, or direct trial by a Court not qualified under sections 197 to 205 but otherwise competent.

It transfers the case to itself. Then it observes the same procedure the transferring Court would have observed, section 447(8).

Change the facts: the other party is in another State and the case must move across High Courts. Only the Supreme Court can do that, and only on the application of the Attorney-General or a party interested, section 446.

Now a different situation entirely. A Sessions Judge has made a case over to a Chief Judicial Magistrate and wants it back. He may withdraw or recall it, section 449(1), and either try it himself or make it over. Had he made it over to an Additional Sessions Judge, he could recall it only before the trial or hearing had commenced before that Judge.

And in every one of those orders under sections 448 to 451, the Sessions Judge or Magistrate must record his reasons, section 452.

Distinctions

What this does NOT mean

An accused cannot go straight to the High Court. Where the case is to move within the same sessions division, the Sessions Judge must have refused first.

A transfer application is not free of risk. A frivolous or vexatious application may be met with an order to compensate the opposing party, and the applicant may have been made to furnish a bond for it.

A stay does not free the accused. The proviso to section 447(6) preserves the subordinate Court's power of remand under section 346.

A High Court trying a transferred case does not use its own ordinary procedure. Section 447(8) requires it to observe the procedure the transferring Court would have observed.

And withdrawal is not unlimited. A case made over to an Additional Sessions Judge may be recalled only before the trial or hearing has commenced before him.

Quick revision

• 446: the Supreme Court may transfer a case or appeal between High Courts or between Courts subordinate to different High Courts, where expedient for the ends of justice; only on the application of the Attorney-General or a party interested, by motion, on affidavit except from the Attorney-General or an Advocate-General; a frivolous or vexatious application may attract compensation.
• 447(1): the High Court's three grounds are no fair and impartial trial, a question of law of unusual difficulty, and required by the Sanhita, general convenience, or the ends of justice; and its four orders are trial by a Court not qualified under ss.197 to 205, transfer to another Court, committal to a Court of Session, and transfer to itself.
• 447(2): on the lower Court's report, a party's application, or its own initiative; no application about a case within the same sessions division until the Sessions Judge has rejected one.
• 447(3) to (9): motion on affidavit; an accused applicant may be required to give a bond for compensation, must notify the Public Prosecutor in writing with the grounds, and no order on the merits within twenty-four hours; stay possible, not affecting remand under s.346; compensation for a frivolous or vexatious application; the transferring Court's procedure applies on a transfer to the High Court; section 218 Government orders unaffected.
• 448: the Sessions Judge may transfer within his sessions division where expedient for the ends of justice, on the same three sources, with s.447(3) to (7) and (9) applying and compensation capped at ten thousand rupees.
• 449 to 451: a Sessions Judge may withdraw or recall from a Chief Judicial Magistrate, and from an Additional Sessions Judge only before the trial or hearing commences; a Chief Judicial Magistrate from any subordinate Magistrate; a Judicial Magistrate what he made over under s.212(2); a District or Sub-divisional Magistrate may make over, withdraw or recall proceedings.
• 452: a Sessions Judge or Magistrate making an order under ss.448 to 451 shall record his reasons.

Test yourself

1. On what grounds may a High Court transfer a criminal case? That a fair and impartial inquiry or trial cannot be had in a subordinate Criminal Court; that some question of law of unusual difficulty is likely to arise; or that the order is required by a provision of the Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, section 447(1).

2. Must an accused approach the Sessions Judge before the High Court? Yes, where the transfer sought is from one Criminal Court to another in the same sessions division; the proviso to section 447(2) bars the application to the High Court unless the Sessions Judge has rejected one.

3. What notice must an accused applicant give? Written notice of the application to the Public Prosecutor with a copy of the grounds, and no order may be made on the merits until at least twenty-four hours have elapsed, section 447(5).

4. Which court can transfer a case from one State to another? The Supreme Court, under section 446, and only on the application of the Attorney-General of India or of a party interested.

5. What is the consequence of a frivolous transfer application? The Court may order the applicant to pay compensation to any person who opposed it; before a Sessions Judge that sum cannot exceed ten thousand rupees, sections 446(3), 447(7) and 448(3).

6. Can a Sessions Judge take back a case he gave to an Additional Sessions Judge? Yes, but only at any time before the trial of the case or the hearing of the appeal has commenced before that Judge, section 449(2).

7. Which orders in this chapter must be supported by recorded reasons? Those made by a Sessions Judge or Magistrate under sections 448, 449, 450 and 451, section 452.