Transfer Of Criminal Cases

Transfer of criminal cases General:

as a general rule, only that court will try the case where the crime has been commited. This chapter 31(sec. 406 to 412) deals with the transfer of criminal cases, which empowers superior courts to transfer criminal cases in certain circumstances. 406: enables supreme court to transfer cases one to another state. 407: enables high court to transfer cases in the state one court to another court. 408: empower session court to transfer cases one to another court in his jurisdiction. 409 411: provision for withdrawal of cases.

Object: the primary object of every procedural law is to facilitate justice and further its ends. A fair and impartial trail is an essential requirement to serve the justice. It is only possible when the court dealing the case is independent. It is fundamental principle of law that justice should not only be done but be seen to have been done. 

If one has reasonably doubts that justice will not be done, the case can be transferred to some other court. G.X.FRANCIS V BANKE BIHARI the defamation case was instituted against Christian by non chritian.

Who may order transfer: the following court may order transfer of criminal cases;   

Supreme court may transfer any case or appeal one to another high court or subordinate court to equal or superior court of another high court. High court may transferred any particular case to any court in his jurisdiction or tried before itself. A session judge may order that a case be transferred from one to another criminal court in his session division.

(supreme court has no jurisdiction to direct withdrawal case from the special court and transfer it to high court and the high court also cannot transfer itself the case under the special enactment.) A.R ANTULAY V R.S. NAYAK

Who may apply:

attorney general of india or advocate general of state or a party interested may apply to the supreme court for transferring the case. Every application made by party interested must be supported by an affidavit. An advocate general of the state and party interested may apply for transfer the case to high court or session court. Such order may be made either on the report of the lower court or by own motion.(suo motu)

When transfer may be ordered:

A case may be transferred at any stage of the proceeding.But if the transfer is sought after a long lapse of time, a court may not exercise discretionary power and refuse the prayer. GUJRAT ELECTRICITY BOARD V. ATMARAM

Grounds:     

sec.407 empowers high court to transfer the case if it appers-

Fair inquiry and trial is not possible It will be convenient for the parties or witnesses of the case It is beneficial in the ends of justice It is required by law Question of law of unusual difficulty is likely to arise

Procedure:  

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Application and Affidavit: every application for transfer made by the party interested must be supported by an affidavit. Bond: when an application for transfer is made by an accused person, the high court or session judge may direct him to execute a bond for payment of compensation on the dismissal of application. Notice: applicant must give notice to the public prosecutor in writing, together with copy of grounds on which transfer is sought. Order of transfer can only be passed after 24 hours of service of notice and the hearing of application. Stay of proceeding: high court and session court may order stay of further proceedings in the subordinate court during the pendency of such application if it is in the interest of justice. Compensation: where application is dismissed, and court found that it was frivolous it may order to pay compensation(up to 1000 or 250 if application dismissed by session court) to the opponent.

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Reasons: A session judge or magistrate making an order under sec.408,409,410,411 shall record his reason for making it.(sec.412)

Withdrawal of cases: a session judge may withdraw or recall any case or appeal transferred to any additional session judge, assistant session judge or chief judicial magistrate. A chief judicial magistrate and judicial magistrate may withdraw or recall any case or appeal transferred to any magistrate subordinate to him. Similarly, any district magistrate or sub-divisional-magistrate may withdraw or recall any case transferred to subordinate to him. For exercising power of withdrawal they shall record the reasons.

Concluding remarks: The power of transfer must be exercised by the court with full care and vigilance.it is the power and duty of the court to strike just balance between the two conflicting forces: (1) Abuse of the provision of transfer with view to haras the opponent and (2) The end of justice which should be the paramount consideration.