When Justice Journeys

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a significant reform in India’s criminal justice system, modernizing legal procedures to align with contemporary needs. Among its important provisions is the structured process for the transfer of criminal cases, ensuring that justice remains fair, impartial and accessible. The power to transfer cases, from one court to another or across jurisdictions, is a crucial safeguard that upholds the integrity of judicial proceedings. It addresses concerns of bias, convenience, and the need for specialized handling in complex cases. This article delves into the legal framework governing the transfer of criminal cases under the BNSS, 2023, examining the roles of the Supreme Court, High Courts, Sessions Courts, and Magistrate Courts in maintaining the principles of justice through such transfers.

When can the Supreme Court transfer a case or appeal?

The Supreme Court can transfer a case or appeal if it appears expedient for the ends of justice. It may transfer:

• A case or appeal from one High Court to another High Court.
• A case from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

Who can apply for a transfer in the Supreme Court?

An application for transfer can be made by:

• The Attorney-General of India, or
• Any interested party.

What is the procedure for filing a transfer application in the Supreme Court?

The application must be made by motion and supported by an affidavit or affirmation, except when filed by the Attorney-General of India or the Advocate-General of the State.

What if the Supreme Court dismisses a transfer application?

If the Supreme Court finds the application frivolous or vexatious, it may order the applicant to pay compensation to the person who opposed the application.

Can the Supreme Court transfer investigations?

No, only cases and appeals can be transferred, not investigations (Rhea Chakraborty v. State of Bihar, 2020).

What happens when a trial is transferred to another state?

The transferee State fully takes over the prosecution, stepping into the shoes of the transferor State. It has the right to appoint Public Prosecutors/Special Public Prosecutors for the trial, appellate, and all related proceedings (K. Anbazhagan v. State of Karnataka, 2015).

What standard is applied for transferring a case due to apprehension of bias?

The apprehension must be reasonable and not based on conjectures or surmises (Harita Sunil Parab v. State (NCT of Delhi), 2018; Swaati Nirkhi v. State (NCT of Delhi), 2021).

When can a High Court transfer cases or appeals?

A High Court can transfer cases or appeals when:

• A fair and impartial inquiry or trial cannot be had in a subordinate Criminal Court.
• A question of law of unusual difficulty is likely to arise.
• It is required by any provision of the BNSS or is expedient for the general convenience of parties or witnesses, or for the ends of justice.

What actions can a High Court take when transferring cases?

The High Court may:

• Assign an offence to be tried by a court not ordinarily qualified but otherwise competent.
• Transfer a particular case, appeal, or class of cases/appeals between subordinate courts of equal or superior jurisdiction.
• Commit a case for trial to a Court of Session.
• Transfer a case or appeal to itself for trial or hearing.

How can a High Court act on transfer requests?

The High Court may act:

• On the report of a lower court.
• On the application of a party interested.
• On its own initiative.

Are there limits on transfer applications within the same sessions division?

Yes, a transfer application cannot be made to the High Court for cases within the same sessions division unless the Sessions Judge has first rejected the application.

What is the procedure for filing a transfer application in the High Court?

The application must be:

• Made by motion.
• Supported by an affidavit or affirmation (unless filed by the Advocate-General).
• Accompanied by a bond or bail bond if filed by an accused.

What notice is required for an accused filing a transfer application?

The accused must:

• Provide the Public Prosecutor with written notice and a copy of the application grounds.
• Ensure at least 24 hours pass before the application is heard.

Can the High Court stay proceedings during a transfer application?

Yes, the High Court may stay proceedings in the subordinate court during the application’s pendency, but the court retains its remand powers.

What if the transfer application is dismissed?

If found frivolous or vexatious, the High Court may order the applicant to pay compensation.

How does the High Court proceed if it transfers a case to itself?

The High Court follows the same procedures that the original court would have used.

When can a Sessions Judge transfer a case or appeal?

When expedient for the ends of justice, a Sessions Judge can transfer cases between Criminal Courts within the same sessions division.

How can a Sessions Judge initiate a transfer?

The Sessions Judge may act:

• On a report from a lower court.
• On an interested party’s application.
• On his own initiative.

What procedural rules apply to Sessions Judge transfer applications?

The same rules from the High Court process apply, with the following exception: if a transfer application is dismissed as frivolous or vexatious, compensation ordered cannot exceed ten thousand rupees.

When can a Sessions Judge withdraw or recall cases?

A Sessions Judge may:

• Withdraw/recall cases assigned to a Chief Judicial Magistrate.
• Recall cases assigned to an Additional Sessions Judge before trial/hearing starts.
• Try or hear the case himself or reassign it.

Can Judicial Magistrates withdraw or recall cases?

• A Chief Judicial Magistrate can withdraw or recall cases assigned to subordinate Magistrates and try them himself or reassign them.
• A Judicial Magistrate can recall cases assigned under Section 212 of the BNSS and try them personally.

What powers do Executive Magistrates have over case assignments?

District and Sub-Divisional Magistrates can:

• Assign cases to subordinate Magistrates.
• Withdraw or recall cases and either handle them personally or reassign them.

Is it mandatory to record reasons for transfers or withdrawals?

Yes, Sessions Judges and Magistrates must record reasons for any order made.

Therefore, the Bharatiya Nagarik Suraksha Sanhita, 2023, reinforces the foundational principle that justice must not only be done but must also be seen to be done. By clearly outlining the powers and procedures for the transfer of criminal cases, it ensures that trials remain fair, transparent, and free from local influences or perceived biases. The checks and balances, ranging from applications by interested parties to the discretionary powers of higher courts, guarantee that transfers are not misused but serve the broader goal of justice. As India’s legal landscape continues to evolve, these provisions play a pivotal role in strengthening public trust in the judiciary and safeguarding the rights of all parties involved in criminal proceedings.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He tweets @muneebmalikrash.