The major expectation from the judiciary is to do fair and equitable justice for the persons who are approaching them for the redressal of their grievance. The judiciary has a strict view regarding fair trial and delivery of justice. In order to protect the order of moral standards and preserve the reputation of the judiciary in granting justice, the court should have reasonable ground for transfer of cases from one court to another.
When a person has a doubt on the fairness of a trial, the said person/party shall seek transfer of the said criminal case within the state with the help of the High Court or anywhere in the country with the help of the Supreme Court. But the apprehension of not getting impartial trial and fair investigation should be reasonable and not imagery based. There should be a sufficient reason to prove the same. The appropriate court shall feel the need of conducting a fair trial is conducive. There is no universal rule for deciding transfer of a case.
While transferring a case, the court shall consider convenience of the prosecution, accused, witnesses and also the interest of the society at large.
Section 406 deals with Power of Supreme Court to transfer cases
Section 406- Power of Supreme Court to transfer cases and appeals.
(1) Whenever it is made to appear to the Supreme Court that an order under this section 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.
(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney- General of India or the Advocate- General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate In the circumstances of the case.
The petitioner/party is liable to show a reasonable cause that justice will fail inevitably if the case is not transferred to another court. Under section 406 Cr.P.C, the Supreme Court has been vested discretionary powers to transfer cases or appeal from one High Court to Another High Court or to another subordinate criminal court or criminal court of equal or superior jurisdiction subordinate to another High Court.
The said transfer shall be made through an application made by the Attorney General of India or any party including complainant, accused, public prosecutor etc.
Section 406 considers only transfer of a case or appeal but transfer of inquiry cannot be sought under this section. Transfer of FIR also cannot be done under this section.
While considering the transfer, the court has to consider substantial cause for dispensation of fair justice. The purpose of criminal trial is to influence impartial justice and fair trial and if the said is undermined and has a sufficient ground to prove the harm that shall lead to injustice, the case shall be transferred to any other appropriate jurisdiction.
Section 407 deals with Power of High Court to transfer cases
Section407- Power of High Court to transfer cases and appeals
(1) 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 thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, 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 any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(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.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that 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.
(3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court' s power of remand under section 309.
(7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.
Under this section it appears to the High Court that there is lack of fair trial and injustice has been caused in a case. There has to be sufficient ground to prove the necessity of the transfer of a criminal case and not merely hyper nature or imagination of a party.
The High Court shall exercise the power to transfer a case in the following situations:
- Fair and impartial inquiry is missing in the subordinate criminal court.
- Necessary to meet the ends of justice.
- Unusual difficulty arising in the question of law.
- There is requirements of the provisions of the code etc
The High Court shall transfer a particular case or appeal from one subordinate criminal court to another criminal court of equal or superior jurisdiction or a case committed for trial in the Sessions court.
After receiving such application for transfer of a case, the High Court shall conduct an inquiry and decide the transfer in the interest of justice. If any of the grounds pleaded or application I found frivolous, the court shall dismiss the application. The Attorney General shall also file an application for transfer along with an affidavit. Even the trial court can refer such cases to High Court where there is a need of transfer of a case from one court to another in the interest of justice.
Section 408 deals with Power of Sessions Judge to transfer cases
Section 408- Power of Sessions Judge to transfer cases and appeals.
(
1) Whenever it is made to appear to a Sessions Judge that an order under this sub- section 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.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.
(3) The provisions of sub- sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub- section (1) as they apply in relation to an application to the High Court for an order under subsection (1) of section 407, except that sub- section (7) of that section shall so apply as if for the words" one thousand rupees" occurring therein, the words" two hundred and fifty rupees" were substituted.
The above mentioned section empowers the Session Judge to transfer cases and appeal from one criminal court to another criminal court in the Session division. The Court of Sessions may act upon the report of the lower court or on the application of a party or even of its own.
The provisions of section 407 sub section (3), (4),(5),(6),(7) and (9) becomes applicable in case of application made to the Sessions Court, with a difference herein that the compensation awarded for a frivolous application is Rs. 250/-. If such a case has already been transferred under section 408 Cr.P.C to the Additional Session Judge, the said trial shall be considered as illegal.
Under section 408 Cr.P.C, a Session Judge cannot transfer a matter pending before Sub-Judicial Executive Magistrate or any other order in this regard.
When a Session Judge gives such order of transfer, he shall also specify appropriate reasons for the same.
CONCLUSION
The transfer of a criminal case from one court to another shall not change the nature of procedure, trial or relief sought neither it changes the subject matter of a case but the change in the jurisdiction imparts a huge impression of focus on fair trial and impartial justice and assurance of good conscience. Transfer of cases from one court to another after sensing the harm or loss to be caused to the party, aggregates the sense of believe in the judiciary and uphold the importance of justice in the aggrieved party.
