Legal provisions regarding powers of Supreme Court to transfer cases and appeals under section 406 of the Code of Criminal Procedure, 1973.
(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.
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(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 application 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 application 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.
The words ‘party interested’ would normally include the complainant, the Public Prosecutor, and the accused and may even cover a person lodging the first information report.
Section 406 of the Code does not clothe the Court with the power to transfer investigations from one police station to another in the country simply because the first information report or remand report is forwarded to a Court.
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The solitary ground that safety of the complainant would be in jeopardy if the case is not transferred is a nebulous ground for transferring the case and hence transfer cannot be granted.
Under Section 406 of the Code, the Supreme Court will transfer a case if there is a reasonable apprehension on the part of a party to a case that justice will not be done.
Case pending against Chief Minister of State and her close relatives—Transfer of case directed:
Where case was pending against Chief Minister of State and her close relatives alleging accumulation of wealth disproportionate to assets. As many as 76 prosecution witnesses (PWs) were recalled for cross-examination.
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Public Prosecutor had neither objected nor gave any consent. 64 of PWs out of them had resiled from their previous statement in chief. But no attempt was made by Public Prosecutor to declare them hostile and/or to cross-examine them by resorting to Section 154.
Supreme Court observed that there was genuine apprehension in the mind of public and real likelihood of bias in the conduct of persecution by public prosecutor appointed by Government of Chief Minister/accused. As process of justice was being subverted, hence transfer of cases to other was directed.
Transfer of case—Validity of petition lodged by political opponent:
In a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the Government in power. It will be their effective weapon to counter the misdeeds and mischieves of the Government in power. They are the mouthpiece to ventilate the grievances of the public at large, if genuinely and unbiasedly projected.
In that view of the matter, being a political opponent, the petitioner is a vitally interested party in the run of the Government or in the administration of criminal justice in the State. The petition lodged by such persons cannot be brushed aside on the allegation of a political vendetta, if otherwise; it is genuine and raises a reasonable apprehension of likelihood of bias in the dispensation of criminal justice system.
Petition for transfer of case—Locus standi of person not party to proceeding/political opponent:
In view of the provision of sub-section (2) of Section 406, Cr. P.C. the petition is maintainable only when motion is moved by the Attorney General or by “party interested”. It will be noticed that the “party interested” has not been defined under Cr. P.C. The word “party interested” is of a wide import and, therefore, it has to be given a wider meaning. If it was the intendment of the legislature to give restricted meaning then they would have used words to the effect, “party to the proceedings.”
In this behalf the wording of Article 139-A of the Constitution of India may be looked at. Under Article 139-A the transfer can be if “the Supreme Court is satisfied on its own motion or on the application made by the Attorney General of India or by a party to any such case. Also if the provisions of Chapter XXIX of the Criminal Procedure Code are looked at, it is seen that when the legislature intended a “party to the proceeding” to have a right of appeal it specifically so stated.
The legislature, therefore, keeping in view the larger public interest involved in a criminal justice system, purposely used words of a wider import in Section 406. Also it is well settled principle of law that statutes must be interpreted to advance the cause of statute and not to defeat it.
The petitioner being of political opponent is vitally interested in the administration of justice in the State and is a “party interested” within the meaning of sub-section (2) of Section 406, Cr. P.C.
An accused, MLA and Minister in State Government (in U.P.) were charged under provisions of POTA and other Acts. Witnesses were afraid to speak against accused persons and one of them was already killed. It was alleged that the State Government was not serious to pursue cases against them as it had already withdrawn cases against accused under POTA.
Therefore it was held by the Court that there is likelihood of miscarriage, of justice in the above background mentioned on record. Therefore, in the interest of justice both cases were transferred to court outside the State, namely Madhya Pradesh.
In Jayendra Saraswathy Swamigal v. State of Tamil Nadu, petitioner filed a petition requesting for transfer of case to another State. The petition was granted by the Supreme Court on the following grounds:
(1) The conduct of prosecution machinery in prompting witnesses to make totally false allegation against senior counsel appearing for defence was bound to demoralise and scare him and he cannot perform his duty of conducting case in fearless and proper manner. Moreover, false and fabricated case may be lodged against junior lawyer appearing for accused.
(2) Action of special investigating team in issuing direction for freezing accounts of mutt in bank merely because accused petitioner is head of mutt is a clear pointer that State machinery anyhow wants to paralyse entire working of mutt in order to put pressure on petitioner and other co-accused connected with mutt.
(3) Passing of detention order against 16 co-accused soon after grant of bail to petitioner is a clear pointer to the fact that State wanted to deprive them of any chance to secure release from custody.
(4) Launching of prosecution against prominent persons who have held high political offices and prominent journalists merely because they have expressed some dissent against arrest of petitioner shows attitude of State that it cannot tolerate any kind of dissent.
(5) In transferring case to another State language of witnesses assumes importance. Besides, convenience of prosecuting agency where there are large number of witnesses have important bearing. Hence case was transferred to Pondicherry as there will be no difficulty in recording evidence in the same language and the presiding judge would also be familiar with the language.