Dr.

Ram Manohar Lohiya National Law University,

Final Draft
The Code of Criminal Procedure, 1973
{Transfer of Criminal Cases by Supreme Court
[Section 406 of the CrPC, 1973]}

Respectfully Submitted to:- Submitted By:-

Mr. Prem Kumar Gautam Akanksha Singh

Assistant Professor, Roll no.: 10; Semester V;

Dept. of Law, Dr.RMLNLU. B.A. L.L.B. (Hons.), Dr.RMLNLU.

Acknowledgment ..............................................................................Error! Bookmark not defined.

Introduction ................................................................................................................................... 4

Transfer of Cases .......................................................................................................................... 5

What is ‘expedient for the ends of justice’? When it becomes expedient for the ends of

justice to transfer a case?.......................................................................................................... 6

Reasonable Cause for Apprehension of Impartiality and Biasness .................................. 8

Circumspection on the level of partiality claimed ............................................................ 11

Conclusion ................................................................................................................................... 15

Bibliography ................................................................................................................................ 16

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 Acknowledgement

I take this opportunity to my guide express my profound gratitude and deep regards to, Mr.
Prem Kumar Gautam, Assistant Professor, Department of Law. This Project couldn't have been
possible without his invaluable guidance and advice. . I would like thank him for his guidance
and help throughout the research and preparation of this project. Besides this I would also like to
express my sincere thanks to the librarian of Dr. Madhu Limaye Library for helping me in
finding the books relating to my topic.

Finally I would also like to thank the authorities of the University for providing us with facilities
and environment necessary for completion of this project.

3
 Introduction

This Project focusses on Section 406 of The Code of Criminal Procedure, 1973. This section
deals with Power of Supreme Court to transfer cases and appeals. The endeavor throughout the
Project would be to understand the Scope and application of the said provision. It shall be
observed that to what degree the said provision guards the principle of a fair and impartial trial.

Basic questions elementary to the understanding of the provision shall be asked and answered
through the help of case laws. In this process I shall attempt recognize the basic principles
behind the application of the said section. A set of guidelines is also attempted for the same at
the conclusion of the project.

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 Transfer of Cases
Introduction

The Project would be dealing with Transfer of Cases by Supreme Court [Section 406].

Principle:-

Fair and Impartial Trial

If an accused has reasonable cause to apprehend that he may not receive a fair and impartial trial
at a particular court, he should have the right to have his case transferred to another court. This
principle is enshrined in the chapter of Transfer of Cases.

Section 406 the CrPC:

Power of Supreme Court to transfer cases and appeals.-

(1) Whenever it is made to appear to the Supreme Court that an order under this section is
expedient for the ends of justice, it may direct that any particular case or appeal be
transferred 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 subordinate to
another High Court.

(2) & (3)1

Questions which arise out of the said provision:-

[Q.1] What is ‘expedient for the ends of justice’? When it becomes expedient for the ends of
justice to transfer a case?

1
(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a
party interested, and every such application shall be made by motion, which shall, except when the applicant is the
Attorney- General of India or the Advocate- General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court
may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may
consider appropriate In the circumstances of the case.
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What is ‘expedient for the ends of justice’? When it becomes expedient for the
ends of justice to transfer a case?

The aforesaid question can be answered appropriately by help of judicial pronouncements. Let us
take Nihar Singh Yadav v. Union of India2 [Ghaziabad PF Scam Case].

Ghaziabad PF Scam case

Facts

The final report filed by CBI revealed that during the period of 2001-2005 Bill Clerk, Nazu,
District Court, Ghaziabad by abusing his official position as public servant entered into criminal
conspiracy with 6 District Judge and 71 others with intent to cheat the District Courts withdrew 6
crores from the District Treasury as GPF withdrawal money in the name of GPF of class IV
employees, creating fake/forged documents. Trial was sought to be transferred from Ghaziabad
to Delhi

Ends of Justice and Impartiality

Supreme Court observed that Article 21 declares that no person shall be deprived of his “life” or
“personal liberty” except according to the procedure established by law. A criminal trial which
may result in depriving a person of his personal liberty and in some case even life has to be
unbiased and without any prejudice for or against the accused.

An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the
foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair,
the criminal justice system would not augur well for the society at large. Therefore, as and when

2
Nihar Singh Yadav v. Union of India, 2011 CrLJ 997 (SC).
6
it is shown that the public confidence in the fairness of a particular trial is likely to be seriously
affected, for any reason whatsoever, Section 406 of CrPC empowers the court to transfer any
case to meet the ends of justice.3

Circumspection

It was also observed that power under Section 406 has to be construed strictly and is to be
exercised sparingly and with great circumspection. It shall be allowed only when there is a well-
substantiate apprehension that justice will not be dispensed impartially, objectively without bias.

In absence of any material demonstrating such apprehension transfer of the trial will not be
made. This is so because any transfer of trial from on State to another implicitly reflects upon the
credibility of not only entire State Judiciary but also the prosecuting agency, which would
include Public Prosecutors as well.

Supreme Court rejected the request of CBI for transfer of the case to Delhi as it did not find
enough material demonstrating the apprehension the justice would not be imperially meted out in
Ghaziabad.

In short it can be concluded that to protect the impartiality of trial and prejudice against or for the
accused to creep into the trial or the adjudication process, the mechanism of transfer of cases is
placed in the CrPC. We now come to another interesting question and that is

 When shall Supreme Court conclude that there is reasonable cause for apprehension of
impartiality of biasness?

OR

 When it shall be circumspect of the level of apprehended partiality? Are there any parameters
to judge that?
3
¶17 Nihar Singh Yadav v. Union of India, 2011 CrLJ 997 (SC).
7
 Reasonable Cause for Apprehension of Impartiality and Biasness

Harza Singh v. State of Punjab4 [Political Influence]

Facts

This is a petition by Hazara Singh Gill for the transfer of two criminal cases under section 52 of
the Prisons Act, pending for trial in the court of Mr. Sant Singh, Magistrate, First Class,
Amritsar. He was elected as member of the Punjab Vidhan Sabha in the last General Elections
after defeating S. Hardip Singh, the brother-in-law of the Chief Minister of the State. S.
Surrinder Singh Kairon, son of the Chief Minister, and S. Ranjit Singh Grewal, who was posted
as Senior Superintendent of Police at Amritsar, have married sisters. S. Mukund Singh, the
father-in-law of S. Surrinder Singh, owned vast lands.

After his election to the Vidhan Sabha, he has not been able to attend any meeting because he
has been arrested and continuously kept in jail, that the petitioner is a protagonist of the Punjabi
Suba, and supported the Akali candidates as against the Sadh Sangat Board which is supported
by the Chief Minister.

He alleged that the Superintendent, Jail, has purposely referred these cases to the Magistrate
instead of dealing with them himself, so that a severe punishment might be imposed upon the
petitioner, and the intention is to keep him in jail, so that he may be kept away from his lands, his
property and his other amenities. He also previously alleged that he had been threatened with a
gun.

Petitioner has asked, therefore for the transfer of the cases from the State of Punjab, and his
allegation is that as there is no separation of the Judiciary from the Executive, the magistracy is
under the control of the Executive and he would not get justice at the hands of any magistrate in
the State.

4
AIR 1965 SC 720
8
 Justice should not only be done but should also be seen to be done

Supreme Court observed that an allegation of this type cannot be accepted, because it is
impossible to think that there is no magistrate in the whole State who can rise above pressure, if
any, brought by the Executive.

However, the question is not one of finding such a magistrate and entrusting the cases to him.
The question really is whether the petitioner can be said to entertain reasonably an apprehension
that he would not get justice. One of the highest principles in the administration of law is that
justice should not only be done but should be seen to be done.

SC concluded that in the present case, there are enough allegations to show that certain strong
parties are opposed to the petitioner in various ways. Whether they would exercise any influence
upon the magistracy and whether magistracy would be able to withstand such a pressure, if
made, is not germane to the present petition.

The apex court further said that the petitioner has made out sufficient circumstances from which
it can be inferred that he does entertain, and entertain reasonably, an apprehension that he would
not get justice in these cases. Therefore the cases were transferred to District Magistrate
Shahranpur.

Surendra Pratap Singh v. State of U.P.5 [Political Clout of an MLA]

Facts

This is a petition by one Surendra Pratap Singh whose brother has been allegedly murdered
(according to the FIR) by one Brijaesh Mishra and few others. The accused Brijaesh Mishra is an
MLA of the Bhaujan Samaj Party which runs the current government of Uttar Pradesh.

Petitioner alleges that the investigating agencies, in connivance with the State Government,
wanted to shield Brijesh Mishra from prosecution in connection with the complaint filed by the
petitioner herein.

5
(2010) 9 SCC 475
9
 Perspective of the Prosecution may get polluted

Supreme Court held that the circumstances in which the incident occurred and the fact that
Respondent 2 (Brijaesh Mishra) returned as an MLA in the same elections, does to some extent
justify the apprehension of the petitioner that the perspective of the prosecution may become
polluted. There is no getting away from the fact that the accused is an MLA and that too
belonging to the present dispensation. Since justice must not only be done but also be seen to be
done, this case is an example where the said idiomatic expression is relevant.

SK Shukla v. State of UP6 [Influence of the Accused]

Facts

Police officers raided house of one Udai Pratap Singh for execution of a warrant of arrest in
Crime No. 55 of 1993 under Sections 2/3 of the Gangsters Act pending before the Special Judge,
Allahabad. In course of their raid Police found Udai Pratap standing with one AK-56 rifle with a
bag of 3 pieces of magazines. They further raided the mango gardens of Udai Pratap where they
recovered large number of guns, ammunition, axes, knives, hatchets, spears etc. He was
consequently charged with provisions of POTA.

The Petitioner claimed that there will be no chance of a fair trial in the State of U.P. as most of
the witnesses are afraid to speak against the respondents and even one Sri Rajendar Yadav was
killed as he deposed against these persons. Petitioner also claimed that State Government has
already withdrawn POTA cases against the accused and directed the Public Prosecutor to
withdraw cases. It was also alleged that Raja Bhaiya, accused, is an independent MLA who is
supporting the present government and is a Minister in the Government.

Likelihood of miscarriage of Justice

Supreme Court observed that there is likelihood of miscarriage of Justice in the background of
allegations made by the petitioner. Court also considered murder of Rajendar Yadav, witness, in
6
(2006) 1 SCC 314
10
connection with the trial. It thus concluded that in the interest of justice both these cases be
transferred to any other court, where in a proper atmosphere the matter can be dealt fairly. Thus
the case was transferred from Special Judge, Allahabad to Special Judge, M.P.

SHORT CONCLUSION: Thus after considering the aforementioned cases a short conclusion
can be made that in cases where the there is a fair possibility of state machinery or the office of
the Prosecution or the accused bears an influence over the prosecution and state machinery, there
the case can be transferred to other court under different High Court or to different High Court.

Circumspection on the level of partiality claimed

Maneka Sanjay Gandhi v. Rani Jethmalani7

Facts

Mrs. Maneka Gandhi figures as an accused in a prosecution launched against her and others by
Miss. Rani Jethmalani for an offence of defamation in the Court of the Metropolitan Magistrate,
Bombay. The former is the editor of a monthly called "Surya" and is the wife of Shri Sanjay
Gandhi and daughter-in-law of Smt. Indira Gandhi, former Prime Minister. The latter is a young
advocate and is the daughter of a leading advocate and currently an important Member of
Parliament. The present petition has been made for a transfer of the criminal case from Bombay
to Delhi, and a string of grounds has been set out to validate the prayer

Hypersensitivity or Convenience cannot be a ground for transfer

Assurance of a fair trial is the first imperative of the dispensation of justice and the central
criterion for the court to consider when a motion for transfer is made is not the hypersensitivity
or relative convenience of a party or easy availability of legal services or like mini grievances.

7
AIR 1979 SC 468
11
Something more substantial, more compelling, more imperiling, from the point of view of public
justice and its attendant environment, is necessitous if the Court is to exercise its power of
transfer

Ramchander v. State of Tamil Nadu8 [Transfer of Investigation]

The CrPC clothes the Supreme Court with power under Section 406 to transfer a case or appeal
from one High Court or a Court subordinate to one High Court to another High Court or to a
Court subordinate thereto. But it does not clothe this Court with the power to transfer
investigations from one police station to another in the country simply because the first
information or a remand report is forwarded to a Court. The application before us stems from a
misconception about the scope of Section 406. There was as of the date of transfer application no
case pending before any Court as has been made State of Tamil Nadu [claimed in the counter
affidavit]. In the light of this counter affidavit, nothing can be done except to dismiss this
petition.

Nihar Singh v. Union of India9

Facts

The final report filed by CBI revealed that during the period of 2001-2005 Bill Clerk, Nazu,
District Court, Ghaziabad by abusing his official position as public servant entered into criminal
conspiracy with 6 District Judge and 71 others with intent to cheat the District Courts withdrew 6
crores from the District Treasury as GPF withdrawal money in the name of GPF of class IV
employees, creating fake/forged documents. Trial was sought to be transferred from Ghaziabad
to Delhi.

Undermines the integrity of entire judiciary

Supreme Considering that the contention of CBI was that either the witnesses or the Special
Judge will get influenced in favour of the accused merely because some of them happen to be
their former colleagues. SC said that acceptance such a contention undermines the credibility and
the independence of the entire judiciary of a State. SC out-rightly rejected this ground.

8
AIR 1978 SC 475
9
2011 CrLJ 997 (SC).
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R. Balakrishna Pillai v. State of Kerala10 [Prosecutor Judge & Adverse Publicity]

Facts

Petitioner, who according to the facts stated in the list of dates, was Minister for Electricity in the
Government of Kerala and MLA or MP for over 30 years and has been convicted under Section
5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, has filed Criminal Appeal
before the High Court of Kerala. This Petition is filed by him for transferring the pending appeal
to the High Court of Karnataka.

Petitioner filed an application before the Chief Justice of Kerala High Court that appeals be
placed before a different Bench on the ground that Mr. Justice P.K. Balasubramanian had
effectively worked against him as an advocate before Justice K. Sukumaran Commission of
Inquiry, which was appointed by the State Government in December, 1985. The Inquiry
Commission was appointed to inquire into some of the mal practices in the execution of the
rectification work in a Hydro Electric Project called Edamalayar Project, consequent on the
discovery of lead in its Power Tunnel. It was stated in the application that petitioner bona fide
apprehended that the learned Judge would be prejudiced against him in spite of passage of time
and his elevation as a Judge of the High Court. Therefore, it is just and fair that he may not hear
the appeals filed by him and filed against him on the ground that justice should not only be done
but it should also appear to be done.

In transfer petition, petitioner changed his version and submitted that criminal appeal pending
before the High Court of Kerala be transferred to the High Court of Karnataka at Bangalore on
the ground that a fair and reasonable trial is not possible in the State because the Government
and that the Press in the State have by their vicious campaign created a situation and impression
among the public that the petitioner has committed irregularities, illegalities and crimes in the
sale of electricity. It is also stated that Mr. Justice P.K. Balasubramanian while practicing as an
Advocate had acted as prosecutor before Justice K. Sukumaran Commission in an inquiry known
as Edamalayar case.

10
AIR 2000 SC 2778
13
 Executive and Judiciary are completely isolated and unjustified aspersions are not ground for
transfer

As regards adverse publicity Supreme Court observed that it has been raised at a belated stage
i.e. after lapse of four years from the date of filing the appeal in the High Court. SC further said
that in this country there is complete separation of Judiciary from the Executive and Judges are
not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on
the basis of the evidence available on record and the law applicable. Granting such application
and transferring the appeal from High Court of Kerala to High Court of Karnataka would result
in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the
assumption that its judicial verdict is consciously or sub-consciously affected by the popular
frenzy, official wrath or adverse publicity, which is not the position qua the judicial
administration in this country.

As to the contention of Judge in the bench who had earlier appeared as an advocate against the
petitioner, SC said that, it is true that one of the principles of the administration of justice is that
justice should not only be done but it should be seen to have been done. However, a mere
allegation that there is apprehension that justice will not be done in a given case is not sufficient.
Before transferring the case, the Court has to find out whether the apprehension appears to be
reasonable. To judge 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
appear to the Court to be a reasonable, genuine and justifiable. In the present day scenario, if
these types of applications are entertained, the entire judicial atmosphere would be polluted with
such frivolous petitions for various reasons.

It further said that Judge while practicing as an advocate might have appeared in a number of
cases, but that would not mean that he would have any personal interest or connection with the
said matters or with persons involved therein and would be biased towards them.

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CONCLUSION

So, after analyzing above the reasonable cause to apprehension of a trial getting polluted by
partiality and court’s circumspection of their not being any reasonable cause of the same, let us
consider whether any guidelines can be made for the same.

 It can be said that one of the most important considerations is the influence accused has over
the State machinery and ultimately leading to a slipshod or biased Prosecution.
 Physical harm and influence of the accused over the Prosecution’s witnesses is also a
consideration.
 Impossibility of being able to reprinted by an able defense lawyer also a consideration.
 Comparative inconvenience and hardships likely to be caused to the accused, the
complainant/the 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.
 Communally 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 the some persons are so hostile
that they are interfering or are likely to interfere either directly or indirectly with the course
of justice.

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Bibliography

Primary Sources:

1. Ratanlal and Dhirajlal, The Code of Criminal Procedure, 17th Edition.

2. R.V. Kelkar, Crimnal Procedure, 5th Edition.

3. Sarkar: The Code on Criminal Procedure, 9th Edition.

4. Universal’s Criminal Manual, 2013.

5. Supreme Court Cases (2006) Volume 7

Secondary Sources:

1. www.scconline.com

2. www.manupatra.com

3. www.hienonline.org

4. www.westlawindia.com

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