TRANSFER OF CRIMINAL CASE: POWER OF THE HIGH COURT
The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a criminal case within the State by the High Court under Section 407 Cr.P.C.and anywhere in the country under Section 406 Cr.PC by the Supreme Court of India.
The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive.
No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.
TRANSFER OF CRIMINAL CASE
POWER OF THE HIGH COURT
Section 407 of the Code of Criminal Procedure, 1973- Power of High Court to transfer cases and appeals:
(1) 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 thereto, 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 Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,it may order-
that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
that any particular case be committed for trial to a Court of Session; or
that any particular case or appeal be transferred to and tried before itself.
However, the power is to be exercised sparingly and only in cases which demonstrate that justice will not be done. It was held in Gurcharan Dass Chadha Vs. State of Rajasthan AIR 1966 SC 1418 that,
“… The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.“
THEREFORE, IF THE APPREHENSION FALLS SHORT OF ANYTHING BUT THE STANDARD OF REASONABLENESS IT WILL NOT BE ABLE TO CROSS THE REQUIRED THRESHOLD FOR TRANSFERRING A CASE
In a recent decision of the Punjab and Haryana High Court titled Manish Tandon And Anr vs State Of Haryana And Anr, Misc. No.M-14198 of 2015 decided on 26 February, 2016 it was held that,
“Cases are not transferred as a matter of routine or merely because a party has expressed some apprehension. The power of transfer has to be exercised consciously and in an exceptional situation when it becomes necessary. Apprehension in the mind of the petitioner is misplaced. The trial has not started. The matter is getting delayed on account of repeated applications being filed by the petitioners. No case for transfer is made out. The petition is dismissed. The parties should appear before the Court below and the Court would make endeavours to decide the case at the earliest.”
In a recent case in the Punjab and Haryana High Court, SINGH LAWYERS successfully opposed a transfer application in which the Petitioner was claiming an apprehension of threat of security from the Respondent. However, the Petitioner fell short of meeting the standard of reasonableness and therefore the apprehension was not entertained by the court. As a result the Petition was dismissed.
To read the judgment click here