Transfer of criminal cases

1. Why transfer exists

A criminal case is ordinarily tried by the court within whose local jurisdiction the offence was committed (section 197 of the BNSS). Sometimes a fair trial is not possible there: the accused is politically powerful, witnesses are being threatened, the local atmosphere is hostile, or the judge is thought to be partial. Fair trial is part of Article 21, and the power of transfer exists to protect it. The provisions are in Chapter XXXIII, sections 446 to 452 (formerly sections 406 to 412 of the CrPC).

2. Supreme Court: section 446 (old section 406)

• The Supreme Court may transfer any case or appeal from one High Court to another, or from a criminal court subordinate to one High Court to a court of equal or superior jurisdiction subordinate to another High Court, when it is “expedient for the ends of justice”.
• It acts only on the application of the Attorney-General of India or a party interested. The application is made by motion and, except when made by the Attorney-General or the Advocate-General of the State, must be supported by affidavit.
• If the application is dismissed as frivolous or vexatious, the Court may order the applicant to pay compensation to the person who opposed it.

3. High Court: section 447 (old section 407)

Grounds (section 447(1)). The High Court may act when it appears that:

• (a) a fair and impartial inquiry or trial cannot be had in a subordinate court; or
• (b) a question of law of unusual difficulty is likely to arise; or
• (c) a transfer is required by a provision of the Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.

Orders it may make. It may direct that (i) an offence be tried by a court not otherwise qualified under sections 197 to 205 but otherwise competent; (ii) a case or appeal, or a class of cases, be transferred to another subordinate court of equal or superior jurisdiction; (iii) a case be committed to a Court of Session; or (iv) a case be transferred to and tried before itself, following the procedure the lower court would have followed.

Procedure.

• The High Court acts on the report of the lower court, on the application of a party interested, or on its own initiative.
• No application lies to the High Court to transfer a case between two courts in the same sessions division unless an application to the Sessions Judge has been made and rejected (proviso to section 447(2)).
• The application is by motion with affidavit (except by the Advocate-General). An accused applicant must give the Public Prosecutor written notice with the grounds, and the application cannot be heard on merits until 24 hours after notice.
• The High Court may stay proceedings below pending the application, but the stay does not affect the lower court’s power of remand under section 346.
• A frivolous or vexatious application may be dismissed with compensation to the opponent; the accused may be required to give a bond for it.

4. Sessions Judge: section 448 (old section 408)

A Sessions Judge may transfer any particular case from one criminal court to another within his sessions division when expedient for the ends of justice, on the report of the lower court, the application of a party or his own initiative. The procedural rules of section 447 apply, but compensation for a frivolous application is capped at ten thousand rupees.

5. Withdrawal and recall: sections 449 to 452

• Sessions Judge (section 449, old 409): may withdraw or recall a case or appeal made over to a Chief Judicial Magistrate, and may recall one made over to an Additional Sessions Judge before the trial or hearing has begun. He may then try it himself or make it over to another court.
• Chief Judicial Magistrate (section 450, old 410): may withdraw or recall a case from a subordinate Magistrate and try it himself or refer it to another competent Magistrate. A Judicial Magistrate may recall a case he made over under section 212(2).
• District Magistrate or Sub-divisional Magistrate (section 451, old 411): may make over, withdraw or recall proceedings before Executive Magistrates.
• Reasons (section 452, old 412): every order under sections 448 to 451 must record reasons.

6. The test: reasonable apprehension

The courts have settled that a transfer is not granted for the asking. The applicant must show a reasonable apprehension that justice will not be done, not a mere allegation or a fanciful fear.

• Gurcharan Das Chadha v. State of Rajasthan, 1965 INSC 261, AIR 1966 SC 1418. The Court stated that a case is transferred if there is a reasonable apprehension on the part of a party that justice will not be done; the court must be satisfied the apprehension is reasonable. On the facts, there was nothing to show interference with the investigation or trial, and the petition failed.
• Maneka Sanjay Gandhi v. Rani Jethmalani, 1978 INSC 240, (1979) 4 SCC 167. A defamation complaint was pending in Bombay and the petitioner, living in Delhi, sought transfer. Krishna Iyer J. said that assurance of a fair trial is the first imperative of the dispensation of justice. Convenience of the parties, the means of the parties, the presence of witnesses and a hostile atmosphere are relevant, but here the grounds were not strong enough and transfer was refused; the Court instead made arrangements for her safety and convenience at the Bombay hearings.
• Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 INSC 256, (2004) 4 SCC 158 (the Best Bakery case). After the acquittal of the accused for burning a bakery in the 2002 riots, with witnesses turning hostile under pressure, the Supreme Court ordered a retrial and transferred it to Maharashtra.
• K. Anbazhagan v. Superintendent of Police, 2003 INSC 642, (2004) 3 SCC 767. The disproportionate assets cases against the then Chief Minister of Tamil Nadu were transferred to Karnataka, because the prosecution was being conducted in a way that did not inspire confidence; Karnataka was chosen for its nearness.

How this is examined

Set as a 10-mark essay in February 2025 (“Explain the provisions of BNSS relating to the transfer of criminal cases”), June 2025 and January 2026. Write the three levels with grounds and procedure, then withdrawal and recall, then two or three cases on the reasonable-apprehension test. Give the old CrPC numbers (406 to 412) in brackets.