Mirza Mohammad Rifat.:What are the reasons on procedure of transfer of criminal cases from any court to another court.

Question-What are the reasons on procedure of transfer of criminal cases from any court to another court.

Introduction:

Courts have the authority to transfer a civil or criminal case from one court to another. If any party to a case believes that he will not get a fair trial otherwise, he may file an application for transfer the case with the currently presiding court. According to the Supreme Court, a judge has discretion to transfer a criminal case.

Types of Transfer of criminal Cases:

A criminal case may be transferred by the following authorities:

• High Court under section 526
• Session Judge under section 528         

Power of High Court Devision to transfer of criminal cases:

According to Section 526, Criminal Procedure Code the High Court has power to transfer any case from one Court, subordinate to it to another on any of the grounds specified therein. This power of transfer extends to all classes of cases.

No application shall now lie to the High Court for the transfer of a case from one Court to another Court in the same Sessions division unless an application for such transfer has been made to the Sessions Judge and has been rejected by him.

Object of Section 526:

Section 526 has two-fold objects:

• To provide convenience to the parties and witnesses.
• To ensure that justice should be done beyond all doubts. 

Mode of Transfer:

                                                                     

1.      Application of an interested party.

2.      Application by lower court.

3.      By suo motu order.

• Application of an interested party: 

Applications for transfer of criminal cases may be made by the parties seeking transfer of a case by filing a petition supported by the grounds of transfer. If he is a reasons to believe that he will not get a fair trial, or the transfer is desirable for the convenience of the parties. If the court satisfied about the grounds of transfer may approved the application.

• Application by lower court:

The HCD on the report of the lower court may transfer a criminal case from one court to another court that some question of law of unusual difficulty is like to arise or for the end of justice.  

• By suo motu order:

The power to transfer a case is the discretion of the court. Normally a criminal case may transfer from one court to another court by an application of the parties. The HCD has the power to transfer a criminal case from one court to another court though his suo-motu power of transfer.

Grounds for Transfer of Cases under Section 526:

Applications for transfer of criminal cases are frequently made by accused persons on the allegation that such transfer is necessary in the interest of justice. The most common grounds on which such applications for transfer are made are-

(a) That the Judge or Magistrate is personally interested in the case.

(b) That he is connected with one or the other party to the case by relationship, friendship, etc. and is therefore, likely to be partial.

(c) That he has already formed or expressed an opinion on the subject matter of the enquiry or trial.

(d) That he has conducted himself in such a manner that no fair or impartial enquiry or trial can be expected from him.

Power of Sessions Judge to transfer cases U/S 526 B:

(1) Whenever it is made to appear to a Sessions Judge that an order under this section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session’s division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the Application of a party interested, or on his own initiative.

(3) The provisions of sub-sections (4) to (10) (both inclusive) of section 526 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court Division for an order sub-section (1) of section 526.]

   

 

Power of transfer of Sessions Judge and District Magistrate:

According to Section 528 of the Code of Criminal Procedure 1889.

Under Section 528(1) of the Code any Session judge may withdraw any case or recall any case from any Joint Session Judge Subordinate to it. The Session judge may before the trial of the case or hearing of the appeal may recall any case from the Additional Session Judge. The Session Judge may try the case in his own court and hear the appeal by himself.

Under Section 528(2) of the Code a Chief  Metropolitan  Magistrate, or the Chief Judicial Magistrate, or District Magistrate also has general power to withdraw any case or re-call any case from any subordinate Magistrate to himself or refer it for trial to another subordinate Magistrate.

Under Section 528(3) of the Code the Chief Metropolitan Magistrate, or the Chief Judicial Magistrate, are authorize to withdraw any case from any Magistrate subordinate to him for the purpose of end of justice.

Under Section 528(4) of the code Any Magistrate, may re-call any case made by him under section 192/2 to any Magistrate and may try such himself.

Under Section 528(5) of the code When a Magistrate making an order under this section shall record the reasons in writing for making the same.

Note: In districts in which the experiment of separation of the Judiciary from the Executive is being tried, the work of transfer of cases from one Judicial Court to another is to be performed by the Additional District Magistrate.

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