(iii) Powers of Sessions Judges to transfer cases
(iv) Withdrawal of cases by a Judicial Magistrate
(v) Transfer or withdrawal of cases by District Magistrate and Sub- Divisional Magistrates.
All these five types of transfer are discussed below in necessary details.
(i) Powers of the Supreme Court to transfer cases:
S. 406 of the Code provides that whenever it is made to appear to the Supreme Court that it is expedient to do so for the ends of justice, it may direct that a particular case or appeal be transferred—
(a) From one High Court to another High Court; or
(b) From a Criminal Court subordinate to one High Court to another Criminal Court (of equal or superior jurisdiction) subordinate to another High Court.
The Supreme Court can be moved under this section only on the application of the Attorney-General of India, or of an interested party, and such an application should always be made in the form of a motion. Except when the applicant is the Attorney-General of India or the Advocate-General of a State, the motion must be supported by an affidavit or affirmation.
The normal practice of the Supreme Court is to act on such affidavits, but if one party omits to make an affidavit in reply, the affidavit of the other party, which remains uncontroverted, can be acted upon. (Hazara Singh, — A.I.R. 1905 S.C. 720)
It is also provided that if such an application is dismissed, and the Supreme Court is of the opinion that it was frivolous or vexatious, it may order the applicant to pay to any person who had opposed the application, such compensation not exceeding Rs. 1,000, as the Court may consider appropriate in the circumstances of the case.
The Supreme Court has held that where the Magistrate himself files an affidavit strongly opposing the transfer sought from his Court, it is clearly expedient for the ends of justice to transfer the case, without even considering the merits of the contentions of the Petitioner asking for such transfer. This is so, because in such a case, all the essential attributes of a fair and impartial trial are put in jeopardy. (Kaushalya Devi v. Mool Raj, – 1964 Cr. L.J. 233)
Likewise, it has been held that a transfer application should .be allowed where the circumstances brought on record show every likelihood of physical harm being caused to the Petitioner. (Sesamma Philip,—A.I.R. 1973 S.C. 875)
It is also to be noted that S. 406 contemplates transfer of proceedings from one Court to another. It does not empower the Court to transfer the investigations from one Police Station to another. If the accused is asked to appear in a far-off Court during the investigatory stage, he can move the Court for appropriate orders. (Ram Chander, — A.I.R. 1978 S.C. 475)
(ii) Powers of High Court to transfer cases:
A High Court is empowered (by S. 407) to transfer cases and appeals, if any of the following three circumstances are made to appear to the High Court, namely,—
(i) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate to that High Court; or
(ii) That a question of law of unusual difficulty is likely to arise; or
(iii) That an order under this section—
(a) Is required by any provision of the Criminal Procedure Code; or
(b) Will tend to the general convenience of the parties or witnesses; or
(c) Is expedient for the ends of justice.
If any of the above conditions is satisfied, the High Court may, acting either on the report of the lower Court, or on the application of an interested party, or on its own initiative (suo motu), order—
(i) That any offence be inquired into or tried by any Court not qualified under Ss. 177 to 185 of the Code, but otherwise competent to inquire into or try such an offence;
(ii) That any particular case or appeal be transferred from a Criminal Court subordinate to it to any other Criminal Court of equal or superior jurisdiction;
(iii) That any particular case be committed for trial to a Sessions Court:
(iv) That any particular case or appeal be transferred to, and tried before itself.
Except when the applicant is the Advocate-General of the State, the application for transfer must be supported by an affidavit or affirmation.
When such an application is made by the accused himself, two further conditions apply:
(i) The accused must give a written notice of his application to the Public Prosecutor and the application cannot be heard unless at least twenty-four hours have elapsed after such a notice is given.
(ii) The High Court can direct the accused to execute a bond (with or without sureties) to cover any compensation that the Court may direct the accused to pay to the other side, on the ground that the transfer application was frivolous or vexatious.
If a transfer application is dismissed, and the High Court is of the opinion that the application was frivolous or vexatious, it may order the applicant to pay to the party opposing the application, by way of compensation, such sum, not exceeding Rs. 1,000, as the Court may consider proper in the circumstances of the case.
Further, the old Code provided for a compulsory stoppage of proceedings by a subordinate Court on the mere intimation by a party of his intention to move a transfer application. This provision was open to gross abuse, and has therefore been deleted by the present Code. Now, it is provided that a Court hearing a transfer application should not stay the proceedings, unless it is necessary to do so in the interests of justice.
It has been held that the fact that the trying Magistrate is the master of complainant, or is subordinate to the District Magistrate, who has sanctioned the prosecution, is no ground for a transfer. However, the fact that the Magistrate has, in a counter-case filed by the accused, prejudged the guilt of the accused, or that he has interested himself by obtaining a settlement between the parties, or that he has made up his mind about the case, have been held to be sufficient grounds.
The Lahore High Court had held that if a good ground for transfer is made out, the Court should not refuse the transfer application, merely because the case has reached an advanced stage of hearing or because the transfer may entail expense and trouble. (Sikandar, — 1928 10 Lah. 778)
There is a conflict of judicial opinion on whether a transfer order operates from the day when it is passed, or from the day on which it is communicated to the lower Court. The Madras High Court has held that the order operates from the day on which it is passed, and therefore, if the lower Court does any further act thereafter, it is acting without jurisdiction, even if a copy of the transfer order has not been received by it.
A Full Bench of the Lahore High Court has, however, taken a contrary view, holding that such an order can be deemed to take effect only when it is communicated to the lower Court, and that any proceedings taken by the lower Court before receiving a copy of such order are, therefore, not null and void.
Constitutional power of High Court to transfer cases:
Under Act, 228 of the Constitution, if the High Court is satisfied that a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution, it must withdraw the case from such a Court, and May—
(a) Dispose of the case itself, or
(b) Determine such question of law, and return the case to the subordinate Court, which must then proceed to dispose of the case in conformity with the High Court judgement.
(iii) Powers of Sessions Judges to transfer cases:
Under S. 408, a Sessions Judge may order any particular case to be transferred from one Criminal Court to another Criminal Court in his sessions division, if it is expedient to do so for the ends of justice. The Sessions Judge may do so either on the report of the lower Court, or on the application of an interested party, or on his own initiative (i.e. suo motu).
Under S. 409, a Sessions Judge may withdraw any case or appeal from any Assistant Sessions Judge or from the Chief Judicial Magistrate subordinate to him. Likewise, at any time before the trial of a case or the hearing of an appeal has commenced before an Additional Sessions Judge, the Sessions Judge can recall any case or appeal which he had earlier made over to the Additional Sessions Judge.
When a Sessions Judge withdraws or recalls a case or an appeal, as above, he may either try the case in his own Court, or make it over to another Court for trial and hearing under the provisions of the Code.
The Kerala High Court has held that before exercising its power of transferring a case, the Court must make an enquiry into the merits of the transfer application. The power of the Court would be rendered infructuous if, before such enquiry is completed, the case is disposed of by the Court where it is pending. The Court, therefore, held that an implied power to stay the proceedings can be inferred in such cases. (Thottuvarambath Velayudhan v. Pottayil Aboobacker Haji, — 1980 Cr. L.J. 181)
(iv) Withdrawal of cases by Judicial Magistrates:
S. 410 empowers any Chief Judicial Magistrate to withdraw or recall any case which he has made over to a subordinate Magistrate, and either try it himself or refer it to any other Magistrate competent to try the same.
Similarly, any Judicial Magistrate can also recall any case made over by him to any other Magistrate under S. 192(2), and try the same himself.
(v) Transfer or withdrawal of cases by District Magistrates and Sub- divisional Magistrates:
S. 411 provides that any District Magistrate or Sub-divisional Magistrate may—
(a) Make over, for disposal, any proceeding which had been started before him, to any subordinate Magistrate;
(b) Withdraw or recall any case which he has made over to any subordinate Magistrate, and either dispose of such proceedings himself, or refer it for disposal to any other Magistrate.