CHAPTER XXXI - TRANSFER OF CRIMINAL CASES
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 partly 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.
Comments
There
is no substance in claim of accused for transfer of case on ground that
Sessions Judge was
biased
as he did not allow accused to sit down during trial; Autar Singh v. state of madhya
pradesh, AIr 1982 SC 1260:
(1982) Cr LJ 1740: (1982) 1 SCC 438: (1982) SCC (Cr) 248.
407. 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;
(ii)
that any particular case be committed for trial of 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 a copy of the grounds on
which it is
made;
and no order shall be made on 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 of 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.
Comments
The
question of issuing notice for hearing the parties may not arise if the order
is passed by the
High
Court suo moto even on the motion of Sessions Judge; Sohan Singh v. State of Rajasthan,
(1997)
3 Crimes 204 (Raj).
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 sub-section (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.
409. Withdrawal of cases and appeals by Sessions Judges.
(1)
A Sessions Judge may withdraw any case or appeal from, or recall any case or
appeal which
he
has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate
subordinate to
him.
(2)
At any time before the trial of the case or the hearing of the appeal has
commenced before the
Additional
Sessions Judge, as Sessions Judge may recall any case or appeal which he has
made
over
to any Additional Sessions Judge.
(3)
Where a Sessions Judge withdraws or recalls a case or appeal under sub-section
(1) or subsection
(2)
he may either try the case in his own Court or hear the appeal himself, or make
it over
in
accordance with the provisions of this Code to another Court for trial or
hearing, as the case
may
be.
410. Withdrawal of cases by Judicial Magistrates.
(1)
Any Chief Judicial Magistrate may withdraw any case from, or recall any case
which he has
made
over to, any Magistrate subordinate to him, and may inquire into or try such
case himself,
or
refer it for inquiry or trial to any other such Magistrate competent to inquire
into or try the
same.
(2)
Any Judicial Magistrate may recall any case made over by him under sub-section
(2) of
section
192 to any other Magistrate and may require into or try such cases himself.
411. Making over or withdrawal of cases by Executive Magistrates.
Any
District Magistrate or Sub-divisional Magistrate may-
(a)
make over, for disposal, any proceeding which has been started before him, to
any Magistrate
subordinate
to him;
(b)
withdraw any case from, or recall any case which he has made over to, any
Magistrate
subordinate
to him, and dispose of such proceeding himself or refer it for disposal to any
other
Magistrate.
412. Reasons to be recorded.
A
Sessions Judge or Magistrate making an order under section 408, section 409,
section 410 or
section
411 shall record his reasons for making it.
