Legal Provisions of Section 407 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
This section empowers a High Court to transfer a case suo motu or when the lower Court applies for it or a party so applies to any other Court of equal or superior jurisdiction within the State on any one or more of the following grounds:
(1) When fair and impartial inquiry or trial does not seem possible;
ADVERTISEMENTS:
(2) Possibility of unusual difficulty on a question of law arising in the case is likely;
(3) When the transfer is necessary under any provision of the Code of Criminal Procedure;
(4) For the general convenience of the parties or witnesses;
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ADVERTISEMENTS:
(5) When transfer is deemed necessary to meet the ends of justice.
Where the parties want a transfer of their case to any other Court under this section, their application must be accompanied by an affidavit and the Public Prosecutor should have a notice of such transfer at least 24 hours in advance. The High Court may also order the applicant to execute a bond for the costs of the opposite party.
The proceedings if already initiated by the subordinate Court when the application for transfer of case is made by a party need not be stayed at that stage unless the High Court orders them to be stayed.
The High Court, while exercising jurisdiction under this section, may pass any of the following orders regarding transfer of a case—
ADVERTISEMENTS:
(1) That any case or appeal to be inquired into or tried by a Court which is otherwise competent though not empowered under Sections 177 to 185 of the Code; or
(2) That any case or appeal be transferred to another Court or the proceedings be stayed; or
(3) That the case be committed to a Court of Session; or
(4) That any case or appeal be transferred to the High Court itself.
Fair and impartial trial:
Where the circumstances exist which create a reasonable apprehension in the mind of the accused that he will not get a fair and impartial trial, he may apply to the High Court for the transfer of his case to some other Court. But the apprehension must be reasonable and not fanciful or imaginary.
Thus where some personal charges were levelled against the Magistrate in the transfer application and he took exception to such charges and expressed his disapproval in strongest words that by itself was not enough to show that he was prejudiced against the accused and the transfer in such a case was not called for.
The transfer of a case from one Sessions Court to another without affording an opportunity to the accused to oppose it was held to be improper as some of the accused persons had shown that they had difficulties in facing trial in the other Court.
In the case of Satish Jaggi v. State of Chhattisgarh the petitioner sought transfer of his case to some other Sessions Court on the ground that Sessions Judge before whom trial was pending was the elder brother of a sitting MLA who was very close to father of one of the main accused. The Sessions Judge himself had not indicated his disinclination to hear the case.
Even though the Sessions Judge would have acted honestly and in an impartial manner in dispersation of justice, but looking to the peculiar facts of the case and in order to ensure that justice was not only done, but also seen to be done, the case was directed to be transferred to some other Sessions Court.
The section also permits transfer of a case to some other Courts or place in the interest of justice, fair-play and for convenience of parties. Thus in Faj-ul-Rahman v. State of Punjab the petitioner and complainant’s daughter were validly married and living happily as husband and wife in Assam.
The complainant filed complaint against the petitioner alleging offence under Sections 363, 366 and 120-B of the Indian Penal Code. Petitioner’s plea was that daughter of the complainant was major and had left the house of her parents with her free consent and they were both living as husband and wife in Assam.
He therefore pleaded his case be transferred from Punjab to the Assam Court as its continuance in the Court in Punjab would cause him great inconvenience and trouble. The Supreme Court held the transfer justified in the interest of justice and convenience of parties.
Where the High Court is satisfied that a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case for itself under Article 228 of the Constitution or determine the said question of law and return the case to the Court from which it was so withdrawn with a copy of judgment on such question. The subordinate Court will then dispose of the case in accordance with the judgment or opinion received from the High Court.
Sub-section (7) provides an effective safeguard against frivolous or vexatious applications seeking transfer of cases under this section. It makes provision for payment of compensation to the person who has opposed the application, a sum not exceeding one thousand rupees.
Since all Executive Magistrates are subordinate to the authority of the High Court, the High Court is competent to transfer a case from one Executive Magistrate to another.