PART III
Transfer of cases
Under criminal jurisprudence governing the transfer of cases, if an accused person has reasonable cause to believe that they may not receive a fair and impartial trial before a specific Judge or Magistrate, they hold the right to request the transfer of their case to another competent court.
While this fundamental principle is widely recognized to safeguard judicial impartiality, it is implemented with necessary legal checks and balances to prevent its potential misuse or frivolous application by litigants.
1. POWERS OF THE SUPREME COURT TO TRANSFER CASES AND APPEALS
Under Section 446(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Supreme Court holds the statutory authority to transfer any criminal case or appeal from one High Court to another, or between subordinate criminal courts of different states, whenever it deems such action necessary to meet the ends of justice.
Pursuant to Section 446(2) BNSS, these proceedings are typically initiated by a motion supported by an affidavit filed by the Attorney General of India or a “party interested”—a term broadly encompassing the accused, complainant, public prosecutor, FIR informant, or closely affected relatives—though the Supreme Court may also direct a transfer suo motu.
However, the court maintains a high threshold: transfers are not ordered for simple personal convenience or hypersensitivity, but require substantial threats to public justice, such as a complete refusal by the local Bar to defend the accused, severe safety risks, or an atmosphere of hostility that compromises trial neutrality.
To deter abuse of this legal process, Section 446(3) BNSS empowers the Supreme Court to mandate compensation payments to the opposing party if a transfer application is found to be frivolous or vexatious.
2. POWERS OF HIGH COURT TO TRANSFER CASES AND APPEALS
(1) At whose instance the power is to be exercised.
Under Section 447(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the High Court holds the authority to exercise its powers of transferring criminal cases and appeals through three distinct avenues: upon receiving an official report from a lower court, on an application submitted by a party interested, or on its own suo motu initiative.
However, the law mandates a procedural restriction for transfers between courts within the same Sessions Division: a party cannot directly apply to the High Court for an intra-divisional transfer without first making an application to the Sessions Judge and having that request formally rejected.
This statutory rule ensures proper judicial hierarchy while maintaining the broad scope of who qualifies as an interested party to seek justice.
(2) Procedure.
Under Section 447 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), any procedure to transfer a criminal case before the High Court must be initiated through a formal motion supported by an affidavit or affirmation, except when filed by the Advocate General of the State.
To prevent frivolous delays when an accused person files for transfer, Section 447(4) BNSS allows the High Court to require the applicant to execute a bond or bail bond to cover potential compensation awarded to the opposing party.
Furthermore, Section 447(5) BNSS strictly mandates that an accused applicant give written notice along with the detailed legal grounds to the Public Prosecutor, prohibiting the High Court from ruling on the merits of the application until a minimum 24-hour statutory period has elapsed following the service of such notice.
(3) Circumstances in which a transfer may be ordered.
Under Section 447(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the High Court is empowered to transfer a criminal case or appeal if it is satisfied that an impartial inquiry or trial is impossible in a subordinate court, an exceptionally difficult question of law is involved, or the transfer serves witness convenience and the ends of justice.
Legal jurisprudence establishes that these statutory grounds are non-exhaustive; a transfer is fully justified if events give rise to a reasonable apprehension that a judge holds preconceived notions that threaten judicial neutrality.
However, courts strictly limit this power, affirming that a transfer cannot be claimed due to personal preferences—such as the lack of a chosen advocate or attempting to follow a specific judge who has been transferred to another district.
(4) Stay of proceeding before a subordinate court.
Under Section 447(6) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), when an application is filed to transfer a case or appeal from a subordinate court, the High Court may order a stay on the ongoing trial court proceedings during the pendency of the application if it finds such an order necessary in the interest of justice.
The High Court is empowered to impose any terms or conditions it deems fit when granting such an interim stay.
Crucially, the statutory provision clarifies that granting a stay on the trial court proceedings does not deprive or suspend the subordinate court’s authority to exercise its power of remand under Section 346.
(5) Decision of the transferee High Court is binding on the transferor court.
When a pending judicial proceeding is transferred from one High Court to another, the statutory business of the original court is officially moved so that the transferee High Court steps directly into the shoes of the transferor court and acts as its successor-in-office for the purpose of those proceedings.
Because the receiving court assumes full authority to continue the case, any subsequent ruling, decision, or legal finding rendered by the transferee High Court becomes completely binding on the transferor court regarding the transferred matter.
(6) Orders which may be passed by the High Court.
Under Section 447(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), when the High Court accepts a transfer application, it possesses the statutory authority to direct four distinct remedies: it can assign an offence to a court that lacks territorial jurisdiction under Sections 197–205 BNSS provided it is otherwise competent, transfer a case or appeal to another equal or superior subordinate criminal court, commit a case directly to a Sessions Court, or transfer the case to be tried before the High Court itself.
This statutory mechanism grants the High Court flexibility to bypass territorial limits laid down in Sections 197–205 BNSS in the interest of justice.
Furthermore, pursuant to Section 447(8) BNSS, whenever the High Court elects to transfer a case for trial before itself, it is legally required to follow the exact same trial procedure that the original subordinate court would have observed had the transfer not taken place.
(7) Compensation on dismissal of frivolous or vexatious application.
Under Section 447(7) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), if an application seeking the transfer of a criminal case or appeal is dismissed by the High Court upon being found frivolous or vexatious, the court possesses the discretionary power to order the applicant to pay appropriate compensation to any party who opposed the application.
This statutory deterrent ensures that parties do not misuse the transfer process to cause unnecessary delays, harassment, or financial strain on opposing litigants.
(8) Saving.
Under Section 447(9) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the saving clause explicitly provides that nothing within Section 447 shall impair or override any order passed by the government under Section 218 BNSS.
Section 218 governs executive directives that specify who will conduct the prosecution, the manner of trial, and the specific offenses involved when a judge, magistrate, or public servant is prosecuted for acts committed while discharging official duties.
However, if an aggrieved party wishes to challenge or seek relief from such government orders issued under Section 218 BNSS, they maintain the legal recourse to approach the Supreme Court directly to request a case transfer under Section 446 BNSS.
3. POWERS OF THE SESSIONS JUDGE TO TRANSFER CASES AND APPEALS
Under Section 448(1) and (2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a Sessions Judge possesses the authority to transfer a criminal case from one court to another within their Sessions Division, acting upon a lower court’s report, an application by an interested party, or on their own initiative to meet the ends of justice.
However, this authority excludes transferring cases from a Sub-Divisional Magistrate (SDM) court—a power reserved exclusively for the District Magistrate—and prohibits a Sessions Judge from assuming jurisdiction over a transferred case if they lack original competence to try it.
To prevent practice abuses such as forum shopping, the judicial precedent dictates that transfer powers must be exercised cautiously, requiring a real and reasonable apprehension that a fair and impartial trial is unattainable.
Furthermore, pursuant to Section 448(3) BNSS, the core procedures, stay parameters, and frivolous-application penalties governed under Section 447 BNSS extend to Sessions Courts, subject to a statutory compensation cap of ₹10,000 for vexatious petitions.
Finally, Section 452 BNSS mandates that a Sessions Judge must explicitly record written reasons for issuing any transfer order.