To secure a fair, honest and impartial trial, sometimes the transfer of a case becomes necessary. If an accused person believes (with a reasonable cause) that he may not receive a fair trial at the present court, he should be empowered with the right to have his case transferred to another court. Further, as overburden of pending cases and appeals results in delayed justice, provisions have been made to transfer the criminal cases from one court to another to deal with this problem.
The provisions related to the transfer of cases are given under Chapter XXXI, from sections 406 to 411 of the Criminal Procedure Code, 1973.
- Types of Transfer under CrPC
- Transfer of cases and appeals by the Supreme Court – Section 406 CrPC
- Transfer of cases and appeals by the High Court – Section 407 CrPC
- Transfer of cases and appeals by the Sessions Judge – Section 408 CrPC
- Withdrawal of cases by Chief Judicial Magistrate – Section 410 CrPC
- Withdrawal of case by Executive Magistrates – Section 411 CrPC
Types of Transfer under CrPC
Six types of transfers under the Criminal Procedure Code are:
1. The power of the Supreme Court to transfer cases from one state to another state.
2. The power of the High Court to transfer cases in the state from one court to another court of equal or superior jurisdiction or to itself.
3. The power of the Session Judge to transfer cases from one court to another court in his Sessions Division.
4. The power of a Sessions Judge to withdraw cases from Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate.
5. The power of Chief Judicial Magistrate to withdraw a case from any Magistrate subordinate to him.
6. The power of Executive Magistrates, i.e. District Magistrates and Sub-Divisional Magistrates, to withdraw cases.
Transfer of cases and appeals by the Supreme Court – Section 406 CrPC
The power to transfer the cases to Supreme Court is conferred under section 406 of the Criminal Procedure Code. The section gives the Supreme Court the power to transfer cases or/and appeals from one High Court to another High Court. This power can be exercised by the Supreme Court whenever it seems necessary and reasonable for justice.
However, the Supreme Court can only act under the application of the Attorney-General of India or the interested party (complainant, Public Prosecutor, accused, etc.).
Note: The Supreme Court does not have the power to withdraw a case from a Special Judge and transfer it to the High Court.
Transfer of cases and appeals by the High Court – Section 407 CrPC
The power to transfer the cases to the High Court is given under section 407 of the Criminal Procedure Code. The High Court can exercise this power under three conditions, when it is satisfied that:
1. A fair and impartial trial cannot be held in any criminal court that is subordinate to it.
2. Certain questions of law of unusual difficulty might arise.
3. An order is required by any provision of the Code or for the general convenience of the parties or the witness involved or for the ends of the justice.
The High Court can exercise this power on the report of the lower court or on the application of a party interested. This power can also be exercised on its own initiative by the High Court. However, the application for the transfer of a case from one criminal court to another criminal court in the same Session Division can be laid down before a High Court only if it has been previously made to the Sessions Judge and was rejected by him.
Transfer of cases and appeals by the Sessions Judge – Section 408 CrPC
Section 408 of the Criminal Procedure Code provides the power to the Sessions Judge to transfer a case from one criminal court to another criminal court in his sessions division. Whenever it seems reasonable for the ends of the justice, the Sessions Judge can act as provided under this section.
The Sessions Judge can exercise this power either on the instance of the report of the lower court or on the application of the party interested or on its own.
Withdrawal of cases and appeals by Sessions Judges – Section 409 CrPC
The Sessions Judge also has the power to withdraw a case or appeal which he has transferred to any Assistant Sessions Judge or Chief Magistrate subordinate to him. The provision related to this is given under section 409 of the Criminal Procedure Code.
However, a Sessions Judge can act accordingly only before the trial of the case or hearing of the appeal has begun. There can be no withdrawal of a case once the trial or hearing has started in the transferee court.
Note: Section 409 of CrPC does not relate to the cases which are originally filed in the court of Chief Judicial Magistrate or Sub-Divisional Judicial Magistrate.
Withdrawal of cases by Chief Judicial Magistrate – Section 410 CrPC
Provisions related to the withdrawal of cases by Chief Judicial Magistrate is contained under section 410 of the Criminal Procedure Code. This section grants the power to the Chief Judicial Magistrate to withdraw any case from any Magistrate subordinate to him and recall any case he had previously transferred to any Magistrate subordinate to him.
The Chief Judicial Magistrate also has the power to inquire or try such a case himself. Along with this, he can also refer such a case to any other Magistrate who is competent to inquire into and try the case.
Withdrawal of case by Executive Magistrates – Section 411 CrPC
The Executive Magistrates have the power to withdraw or recall any case under section 411 of the Criminal Procedure Code. The Executive Magistrate under this section can withdraw any case which has been commenced before the court to any Magistrate that is subordinate to him for the disposal of the case. He is also authorized under this section to withdraw or recall any case he had previously transferred to any Magistrate subordinate to him as well as to dispose of such a case himself or refer it for disposal to any other Magistrate.
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