Legal Provisions of Section 406 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Under this section the Supreme Court has been vested with wide discretionary power to transfer a case or appeal from one High Court to another or form a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court, in the interest of justice.
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Such transfer may be made by the Supreme Court on an application from the Attorney General of India or party interested which includes the complainant, the public prosecutor, accused and even the person who lodged the first information report.
The person seeking transfer of his case under this section has to show that there is reasonable apprehension that justice will not be done in his case if such transfer is not done. The Supreme Court may transfer the case only if it finds that the apprehension is reasonable.
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In the case of Kaushalya Devi v. Moal Raj, the Magistrate in whose Court the case sought to be transferred was pending, made an affidavit and put a strong plea opposing the transfer. The Supreme Court held that such an action on the part of Magistrate has put all the essential attributes of fair and impartial criminal trial in jeopardy and therefore even without considering the merits of the contention raised by the petitioner, it would be expedient to transfer the case from the Court of that Magistrate.
In State v. V.C. Shukla, the Apex Court has ruled that Section 7 of the Special Courts Act, 1979 which provided for an automatic transfer of appeals from the High Court to the Supreme Court, was not in conflict with the provisions of Section 406 of the Code of Criminal Procedure.
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Where the accused who had been convicted for attempt to murder of Chief Justice of the High Court in which his appeal was pending, applies for the transfer of the appeal to some other Court on the ground that he will not have a fair hearing of the appeal in the High Court, it was held that this was a fit case of transfer under Section 406 of the Code.
The Supreme Court in Hazara Singh v. State of Punjab, held that where serious allegations against the Government of Punjab and the Chief Minister of the State were made, it was only appropriate to transfer the case of the accused outside the Punjab State.
In Maneka Gandhi v. Rani Jethmalani, the accused, Smt. Maneka Gandhi, the editor of a monthly and daughter-in-law of the Late Prime Minister Smt. Indira Gandhi, was prosecuted in Bombay for defamation by Shri Jeth Malani, a leading Advocate and Member Parliament. During the course of prosecution, a petition was filed under Section 406, Cr.P.C. for transfer of case from Bombay to Delhi on the grounds of substantial prejudice, non-availability of competent legal service and absence of congenial atmosphere for a fair and impartial trial. The Supreme Court dismissed the petition and held that the facts and circumstances of the case did not warrant the transfer of case on the alleged grounds.
In 1984, the Supreme Court in R.S. Nayak v. A.R. Antulay, withdrew the case (involving corruption charges against the Ex-Chief Minister of Maharashtra Shri Antulay) from the special Judge appointed under Criminal Law Amendment Act, 1952 and transferred it to the Bombay High Court with a request to assign it to a sitting Judge of the High Court. But later on the Supreme Court reviewed its earlier ruling held in A.R. Antulay v. R.S. Nayak that its earlier order was not correct and the transfer of the case should have been refused for want of genuine grounds.
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In the case of S.K. Shukla v. State of U.P., the accused was M.L.A. and Minister in State Government charged under provisions of POTA and other Acts. Witnesses were afraid to speak against the accused persons. One of them had already been killed. State Government was stated to be not serious as it had already withdrawn cases against the accused under POTA. Therefore, in the interest of justice both cases were transferred to Court outside the State as there was likelihood of miscarriage of justice in the background mentioned on record.
Where a case has taken a communal turn, and there is bitterness of local communal feelings and the atmosphere is tense, there is good ground for the transfer of case.
In Avtar Singh v. State of Madhya Pradesh, the accused sought the transfer of his case from the Court of Session on the ground that the Judge did not allow him to sit down during the trial, it was held that there was no substance in the allegation of unfairness or impartiality and, therefore, the application for transfer of case deserved to be rejected.
Poverty of the petitioner has been held to be a valid ground for transfer of case under Section 406.
Section 406 contemplates only the transfer of a case or an appeal but an inquiry cannot be sought to be transferred under this section. Similarly, transfer of investigation from one police station to another simply because the F.I.R. or remand report is forwarded to a Court, cannot be entertained under this section.
The Supreme Court in Shree Baidynath Ayurved Bhawan (P) Ltd. v. State of Punjab, observed that although Section 406 of Cr. P. C. empowers the Supreme Court to transfer a criminal case from one Court situated in one state to another Court situated in another state but indisputably the convenience of the parties including the witnesses to be produced at the trial is a relevant consideration while ordering such transfer.
In the instant case, number of cases was filed between the company and its agents in courts subordinate to one High Court. The Company sought transfer of all cases to other High Court or any court subordinate to it. Investigation was pending in some cases, therefore the apprehension of the company that justice may not be done to it was misplaced, hence the Supreme Court refused to transfer the cases.
While allowing the transfer of a case, the Court has to take into consideration not only the convenience of a party but something more substantial which strengthens the cause of fair dispensation of justice.
In the historic case of Jayendra Saraswathy Swamygal v. State of Tamil Nadu, the Supreme Court allowed transfer of case to another State due to creation of fear psychosis in the minds of people. In this case, a petition was filed for transfer of case to another State by Seer of Kanchi Math charge-sheeted for murder conspiracy.
Action of Special Investigation Team in issuing direction for freezing accounts of Math in banks merely because the accused petitioner is head of the Math clearly indicated the fact that the State machinery anyhow wanted to paralyse the entire working of Math and associated trusts and endowments in order to put pressure upon petitioner and other co-accused who were in any manner connected with the Math so that they may not be able to defend themselves. The Apex Court allowed the transfer petition due to possibility of creation of fear psychosis in the minds of people of the State.
But the Apex Court categorically observed that a mere press statement made by the Chief Minister Ms. Jayalalitha that investigation had revealed involvement of petitioner in Shankararaman murder case could not be a ground for transferring the case to another State in view of the fact that the accused seer of Kanchi Math charged for murder conspiracy had already been arrested before that date. Since the arrest of petitioner had generated lot of publicity, therefore, in such circumstances the statement made by the Chief Minister on floor of House did not amount to condemning accused even before the commencement of the trial.
The Supreme Court ordered the transfer of this case to Pondicherry due to facility of language of witnesses and lesser distance of Pondicherry to the State of Tamil Nadu. The Court held that while directing of criminal case, language spoken by witnesses assumes great importance from the point of view of convenience of prosecuting agency, especially in cases where there were large number of witnesses and documents, had also an important bearing.
The case was transferred to Pondicherry as there would be no difficulty in recording evidence in same language in which almost all witness would depose and with which they were familiar. Witnesses also would not face much inconvenience in going there due to lesser distance.
In Abdul Nazar v. State of Tamil Nadu, the accused was charged with the offence of bomb blast. He applied for transfer of his case elsewhere stating that the place of his trial was communally tense and there being no competent lawyer available, he would not get proper justice.
His application was dismissed by the Court on the ground that the Government had spent huge amount of money in appointing a special Court and most of the witnesses in the case were local residents and that in view of the nature and gravity of the offence, it had to be tried at the place where the incident took place.
The Supreme Court in Parminder Kaur v. State of Uttar Pradesh held that transfer of case cannot be permitted on vague and unfounded allegations. In this case, the petitioner apprehended physical harm, threat or intimidation from the opposite party if he attends the Court at Rampur.
Since the petitioner had not substantiated her apprehension of threat or bodily harm and she had been attending the proceedings in Court of Rampur in the past and no untoward incident was ever brought to the notice of the police and if at all there was any apprehension, she could have sought police protection, there was no valid reason to transfer the case from the Court of Rampur to a Court of competent jurisdiction at Delhi or Chandigarh.
Her second ground for transfer of case was illness which was not supported by any medical evidence. The facts of the case showed that the petitioner had been travelling all the way from U.S.A. to India and going to Rampur to look after her landed property. Under the circumstances her case could not be transferred from Rampur Court on vague and unfounded grounds.
In Monica & another v. State of Rajasthan, the respondent had lodged a complaint against petitioners for producing forged order of Magistrate before local police in Jaipur. The petitioner sought to transfer of the said case to Delhi High Court.
The Supreme Court dismissed the petition under Section 406, Cr. P.C. holding that the said proceedings could not be transferred to Delhi High Court as respondent had nothing to do with criminal proceedings initiated by petitioners against her husband and in-laws and pending at Delhi as the forgery had allegedly taken place at Jaipur and most of witnesses were from Jaipur only. Furthermore, investigation of complaint has not yet completed.
In the instant case, Monica and her mother had sought transfer of three petitions filed by them in 2007 under Section 482 of Cr. P.C. for quashing the FIRs pending before the High Court of Jaipur to Delhi High Court.
The husband and mother-in-law of Monica were declared proclaimed offenders and the property of mother-in-law situated in Lajpat Nagar, Delhi was sealed. The respondent had filed an FIR in Addl. CJM’s Court at Jaipur that Monica and her mother had forged the stay order dated 10-7-2007 without seeking clarification from Chief Justice.