Transfer of Criminal Cases Sections 446 to 452

Sections 446 and 447, BNSS 2023 — the substance

Section 446. 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. The Court acts only on the application of the Attorney-General of India or of a party interested, and every application shall be made by motion supported by affidavit or affirmation, except where the applicant is the Attorney-General or an Advocate-General.

Section 447. 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 to it; 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 Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order that a case be transferred, or committed for trial to another Court, or transferred to and tried before itself.

⚠ The asymmetry in the tests

The Supreme Court and the Sessions Judge act on a single ground: that an order is expedient for the ends of justice.

The High Court has that ground too, but three others besides — that a fair and impartial trial cannot be had, that a question of law of unusual difficulty is likely to arise, and that a transfer will tend to the general convenience of the parties or witnesses.

The practical consequence is that the High Court is the natural forum for most transfer applications. The Supreme Court’s power is engaged only where the transfer must cross from the jurisdiction of one High Court to another — typically a transfer from one State to another, which no High Court can order.

📖 Gurcharan Das Chadha v. State of Rajasthan, AIR 1966 SC 1418

Facts: An application was made to transfer a criminal case on the ground that the applicant apprehended that he would not receive a fair trial before the court in which it was pending. The Court was required to state the test by which such an apprehension is judged.

Held: The Supreme Court held that a case is transferred where there is a reasonable apprehension on the part of a party to a case that justice will not be done, and that the applicant is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it may be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. The Court emphasised that the apprehension must be reasonable and not fanciful, and must rest on material: a bare assertion of apprehension, however sincerely felt, will not do. And it stated the principle that governs the whole subject — that it is not merely of some importance but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done, so that public confidence in the administration of justice is preserved.

Ratio: A transfer is ordered where a party entertains a reasonable apprehension that justice will not be done. He need not show that justice will inevitably fail, but the apprehension must be reasonable and founded on material.

📖 Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167

Facts: A transfer of a criminal case from one city to another was sought on grounds which included the inconvenience of the petitioner and an apprehension about the atmosphere in which the trial would be conducted. The Court considered the weight to be given to convenience as against the assurance of a fair trial.

Held: The Supreme Court held that assurance of a fair trial is the first imperative of the dispensation of justice, and that the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services, but the existence of a reasonable apprehension, supported by material, that a fair and impartial inquiry or trial is not feasible. The Court held that convenience is a relevant but not a decisive factor, and that the convenience to be considered is that of everyone concerned — the accused, the complainant, the prosecution and the witnesses — and not merely of the party applying. It added that a mere allegation of a surcharged atmosphere or of adverse publicity will not by itself justify a transfer, since courts are expected to be resistant to such pressures, and that something more, going to the feasibility of a fair trial, must be shown.

Ratio: Assurance of a fair trial is the first imperative. The test is a reasonable apprehension supported by material that a fair trial is not feasible; convenience is relevant but not decisive, and is the convenience of everyone concerned.

⚠ What does not justify a transfer

Adverse orders made by the judge in the course of the case. A wrong order is corrected by appeal or revision, not by moving the case to another court. To hold otherwise would make every unsuccessful litigant a potential transfer applicant.

The applicant’s own subjective belief, however strongly held, without material from which a reasonable person would draw the same inference.

The inconvenience of one party, where transfer would inconvenience the other side and the witnesses. The convenience considered is that of everyone concerned.

Hostile press coverage by itself, without material showing that it will affect the conduct of the trial. Courts are expected to be resistant to such pressure.

And a desire to choose a more favourable forum, or to delay the proceeding. The Supreme Court may order the applicant to pay compensation where it finds an application frivolous or vexatious.

The position stated shortly

1. Section 446: the Supreme Court may transfer a case or appeal from one High Court to another, or between Courts subordinate to different High Courts, where it is expedient for the ends of justice. The application must be by motion supported by affidavit.

2. Section 447: the High Court may transfer on four grounds — that a fair and impartial trial cannot be had; a question of law of unusual difficulty; a requirement of the Sanhita or the general convenience of the parties or witnesses; or expediency for the ends of justice.

3. Section 448: a Sessions Judge may transfer a case within his sessions division where it is expedient for the ends of justice.

4. Sections 449 to 451: withdrawal and recall by a Sessions Judge, a Chief Judicial Magistrate, a first-class Magistrate and an Executive Magistrate.

5. Section 452: a Sessions Judge or Magistrate acting under sections 448 to 451 shall record his reasons.

6. The test is a reasonable apprehension, supported by material, that a fair and impartial trial is not feasible. The applicant need not show that justice will inevitably fail: Gurcharan Das Chadha.

7. Assurance of a fair trial is the first imperative. Convenience is relevant but not decisive, and it is the convenience of everyone concerned: Maneka Sanjay Gandhi.

8. Adverse orders are not a ground. The remedy against a wrong order is appeal or revision, not transfer.

9. Nor is hostile publicity by itself, or the subjective belief of the applicant, or a preference for a different forum.

10. Transfer is exceptional, and an application found frivolous or vexatious may attract an order of compensation against the applicant.