Transferring a Criminal Case to Another State Through the Supreme Court

Which court can transfer: the three levels

• Section 446 BNSS: the Supreme Court can transfer a case or appeal from one High Court to another, or from a criminal court subordinate to one High Court to a court of equal or superior jurisdiction subordinate to another High Court.
• Section 447 BNSS: a High Court can transfer a case between courts subordinate to it, or to itself.
• Section 448 BNSS: a Sessions Judge can transfer a case between criminal courts in the sessions division.

The test for which level applies is not the State on the map but the High Court above each court. The courts of Punjab, Haryana and Chandigarh all sit under the Punjab & Haryana High Court, so a case can be moved from Mohali to Gurugram by that High Court under section 447. A case pending in a Delhi court that needs to go to Gurugram, or to Jaipur, crosses from one High Court to another and so needs the Supreme Court.

What the Supreme Court looks for

The governing words are expedient for the ends of justice. In Maneka Sanjay Gandhi v. Rani Jethmalani (1979), the Court explained that the question is whether there is a reasonable apprehension, not a fanciful or merely subjective one, that justice will not be done if the case stays where it is. Mere inconvenience to the accused is rarely enough, because the accused can usually seek exemption from personal appearance instead. Factors that have weighed with the Court include:

• credible threats to the accused, the complainant or witnesses at the present venue, preferably reported to the police at the time;
• a communally or politically charged atmosphere around the case that makes a calm trial unlikely;
• the conduct of the prosecution or the local administration that suggests partiality;
• in matrimonial criminal cases, such as cruelty under section 85 BNS or proceedings under the Domestic Violence Act, the wife's hardship in travelling to a distant State, especially with young children;
• a connected case already pending at the proposed venue, so that both can be tried together.

General allegations against the judge or the court will not do. If a petition asserts bias, it must give facts that a reasonable person would accept as grounds for concern.

What section 446 does not cover: investigations and FIRs

Section 446 transfers cases and appeals pending before courts. It does not by itself move an investigation from one State's police to another's; the Supreme Court said as much under the identical old provision in Ram Chander Singh Sagar v. State of Tamil Nadu (1978). Where a person faces several FIRs in different States over the same act, a single speech, post or broadcast for example, the remedy is usually a petition under Article 32. In such cases the Court has directed that later FIRs be treated as statements in the first, or be transferred and investigated together, applying the rule against successive FIRs for one occurrence recognised in T.T. Antony v. State of Kerala (2001).

Making the application

The application is made by the Attorney-General or by a party interested, by a petition supported by an affidavit. It should contain:

1. 1.Details of the case to be transferred: the FIR, the charge sheet or complaint, the court, the stage of trial and the next date.
2. 2.The court to which transfer is sought and why that court has jurisdiction to try the offence once transferred.
3. 3.The specific facts relied on, with documents: police complaints about threats, medical records, proof of residence and distance, orders in connected cases.
4. 4.An application for an interim stay of proceedings in the present court until the petition is decided.
5. 5.Filing through an Advocate-on-Record and service on the State and the other parties.

If the Court finds a transfer application frivolous or vexatious, the section allows it to order the applicant to pay compensation to the person who opposed it. A petition should be filed only on facts that can be shown.

Alternatives the Court may prefer

The Supreme Court does not always transfer even where it accepts that there is hardship. It may instead exempt the accused from personal appearance except on essential dates, permit the accused or a witness to appear by video, direct the State to provide protection to a witness, or direct the trial court to decide the case within a time frame. A petition that asks for these as alternative reliefs gives the Court room to help even if it will not move the case.

Our Supreme Court chamber files transfer petitions, while the team handling the trial or bail in the original court keeps that case protected meanwhile.