By Akif Abidi and Avik Gopal
The principle of fair trial is a widely recognized principle that implies that “If an accused person has reasonable cause to believe that he may not receive as fair trial at the hands of a particular judge, he should have the right to have his case transferred to another court.” It gives rise to the power of the courts to transfer cases under the Code of Criminal Procedure, 1973.
Types of Criminal Transfer Cases
- Transfer by the Hon’ble Supreme Court from one State to another State;[1]
- Transfer by the Hon’ble High Courts in the State from one court to another court of equal or superior jurisdiction or to itself;[2]
- Transfer by the Sessions Judge from one court to another sessions division.[3]
Supreme Court Guidelines to be Followed While Deciding a Transfer Petition
The Supreme Court has been given very wide discretionary power to transfer cases and appeals 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 sub- ordinate to another High Court. The Supreme Court can exercise the power whenever it considers it expedient to do so for the ends of justice. The Supreme Court may act under this section only on the application of the Attorney-General of India or of an interested party. In the case of Nahar Singh Yadav vs Union of India[4], the Hon’ble Supreme Court laid down the broad guidelines that a Court must consider while deciding a Transfer Petition-
- When it appears that the State machinery or prosecution is acting Cases and Appeals by Supreme Court hand in glove with the accused and there is likelihood of miscarriage of justice due to lackadaisical attitude of the prosecution;
- When there is material to show that the accused may influence the prosecution witness or cause physical harm to the complainant;
- Comparative inconvenience and hardships likely to be caused to the accused, the complainant/prosecution, and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses;
- A commonly surcharged atmosphere indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and
- Existence of some material from which it can be inferred that some persons are so hostile that they are likely to interfere either directly or indirectly with the course of justice.
Judicial Trend of the Supreme Court Over the Years
The Hon’ble Supreme Court can exercise its powers if there is a reasonable apprehension that justice will not be done to a party. The apprehension must not only be entertained bur must appear to the court to be a reasonable apprehension.[5]
In Bhiaru Ram vs CBI[6] the Hon’ble Supreme Court noted that the Petitioner was seeing transfer of case to suit his convenience and so cannot be allowed. However, in Lalita v. Kulwinder Kumar[7], the Hon’ble Supreme Court allowed a transfer as the Petitioner was unable to bear the cost of travel having two minor school going children and being sick.
In Shree Baidyanath Ayurved Bhawan (P) Ltd. vs State of Punjab, [8] reiterated that before an order of transfer is enforced, the convenience not only of the petitioner but also of the prosecution, other accused and witnesses including the larger interests of society should be taken into consideration.
In a similar case, the Hon’ble Supreme Court while deciding a transfer petition filed by the accused where he was charged with a murder of a girl child, held that there was no need to transfer the case from West Bengal to another State as the State would provide safety to the accused and that the case required examination of more than 90 witnesses who were Bengali speaking. Thus, transfer of the case would cause serious impediment in the deposition of the witnesses as they would have to travel to another State.[9]
Transfer of an Investigation
The Hon’ble Supreme Court is not inclined to transfer pending investigations from one state to another as the cases are pending and the investigation has not been completed. However, if it is necessary for the case and certain crucial aspects of the investigation are available in the other State, the Court allows the transfer of the investigation.[10]
A recent case filed by the Petitioner requesting the transfer of an investigation from Punjab to Delhi on medical grounds was rejected by the Hon’ble Court as the case was an ongoing investigation as the chargesheet had not been filed and the facility of video conferencing was available to the parties due to the advancement in technology.[11]
Transfer of Matrimonial Proceedings
Matrimonial proceedings usually require transfer of cases as the spouses shift to their respective homes which are usually in different states. Since the parties face inconvenience relating to travel, family and children, they file a Transfer Petition requesting the Hon’ble Court to shift the trial of case in the courts having jurisdiction over the area where they reside. The Courts have a tendency to usually consider the convenience of the wife or mother while deciding the transfer petition.[12]
Transfer Petition Allowed by the Court
The Hon’ble Supreme Court allowed a transfer petition filed by a wife to transfer the divorce proceedings from Bombay to Delhi as she had no independent income could not stay in Bombay alone.[13]
The Hon’ble Court has also repeatedly upheld that while deciding the transfer Petitions filed by the wife in apprehension of danger to the safety of the wife is also to be considered.[14]
Transfer Petition Rejected by the Court
The Hon’ble Supreme Court rejecting the transfer of the case observed that if the husband is ready to bear the expenses of the wife in terms of traveling and accommodation.[15]
In certain cases the court also may order the Husband to pay the expenses incurred by the Wife while travelling and staying in a different state for travel.
Power of the High Court to Transfer Cases
The High Courts also have the power to transfer the cases within their State in case there is an apprehension that a fair and impartial trial cannot be held in a subordinate criminal court, or transferring the case would tend to the general convenience to the parties or the witnesses.
Judicial Trend of the High Court
In a case of Shamboo Dayal vs State of M.P. [16] the Madhya Pradesh High Court, the Petitioner prayed for transfer as two of the Respondents knew the Additional Sessions Judge and they had been threatening him with a view to secure a compromise in the case. The Additional Sessions Judge denied the allegation and the petition was accordingly dismissed. But when the petitioner appeared in the court the judge said that he would do what was necessary to correct the persons. He also issued non-bailable warrants against the petitioner’s wife and sister and refused bail as they did not turn up for giving evidence. Two respondents were also discharged. The Madhya Pradesh High Court ruled that these circumstances were sufficient to create doubt in the petitioner’s mind as to the impartiality of the judge. The High Court therefore ordered transfer of the case.
In Fatima Riswana v. State,[17] the Supreme Court was called upon to decide propriety of a Madras High Court ruling transferring a criminal case dealing with pornography and sexual exploitation of women from a mahila court presided over by a lady judge, a court presided over by a male judge. The court found it improper to exposure permit the transfer on the presumption that the proceedings would cause embarrassment to the lady judge. The High Court also has the power to act suo-motu on a transfer of a case which can only happen after hearing the parties.
Conclusion
Cases require justice to be delivered safely, and even the courts have time and again held that the main basis of transferring the petitions has been the fair justice to people. While deciding a transfer, mere apprehension of the wrong or danger is not enough. Properly substantiated reasoning must be given or inferred. In many instances, a far-fetched connection with some political party or Judge or any small past encounter makes people go asking for the transfer of petitions. But the court has rejected such pleas many times. Over the years, the Courts have taken into account various factors while deciding if it should grant the transfer or not. The primary consideration being justice to the parties along with the convenience of the factors that evolve along with the case
[1] Section 406 of the Code of Criminal Procedure, 1973
[2] Section 407 of the Code of Criminal Procedure, 1973
[3] Section 408 of the Code of Criminal Procedure, 1973
[4] Nahar Singh Yadav vs Union of India, (2011) 1 SCC 307
[5] Gurcharan Dass Chadha vs State of Rajasthan, AIR 1966 SC 1418
[6] Bhiaru Ram vs CBI, (2010) 7 SCC 799
[7] Lalita v. Kulwinder Kumar, (2007) 15 SCC 677
[8] Shree Baidyanath Ayurved Bhawan (P) Ltd. vs State of Punjab, (2009) 8 SCC 389
[9] Afjal Ali Shah vs State of West Bengal 2023 SCC OnLine SC 282
[1o] Rhea Chakraborty vs State of Bihar (2020) 20 SCC 184
[11] Girish Chandra vs State of Punjab T.P. (Crl.) No. 000114-/2023
[12] Ekta Dhadhich v. Rajendra Prasad Sharma, 2021 SCC OnLine Raj 4013
[13] Mona Aresh Goel v. Aresh Satya Goel, (2000) 9 SCC 255
[14] Sesamma Phillip vs. P. Phillip, (1973) 1 SCC 405
[15] Harita Sunil Parab vs State Of NCT of Delhi (2018) 6 SCC 358
[16] Shamboo Dayal vs State of M.P., 1985 Cri LJ 638 (MP)
[17] Fatima Riswana v. State (2005) 1 SCC 582
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