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Jurisdiction of criminal court and Transfer of criminal case , Section 179 and 406 of Criminal Procedure Code
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Jurisdiction of criminal court and Transfer of criminal case
Recently, in the supreme court a petition was filed to transfer the case from Bihar to Mumbai by Riya Chakravarthy in a matter of FIR lodged in Bihar by Father of late Sushant Singh Rajput
It is the preliminary fight of Jurisdiction,
so as per section 179 of the Criminal Procedure Code, Bihar has Jurisdiction to
trial under Section 380, 382, 406 and 420 of Indian Panel Code.
Jurisdiction of criminal court and Transfer of criminal case
are different, It is here explained in
simple English about the power of the Supreme Court to transfer the Case.
About Transfer of Criminal Case under section 406 of the Criminal Procedure Code 1973
Section 406 of Criminal Procedure Act tells about transfer case from the high court to another or from one subordinate court of high court to another subordinate court of the high court, only those case or appeal can be transferred which is required for the purpose of proper justice, Only case or appeal can be transferred not any investigation
According to this section, if necessary in the interest
of justice, at various levels, the court has made arrangements for transfer of
pending cases before its subordinate courts.
There is no universal or hard and fast rule can be
prescribed for deciding a transfer petition which has always to be decided on
the basis of the fact of each case.
Under this section, 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 A petitioner isn't required to demonstrate that
justice will inevitably fail. he's entitled to a transfer if he shows
circumstances from which it is often inferred that he entertains a fear which
it's reasonable within the circumstances alleged. But a mere allegation of
apprehension doesn't suffice;
Grounds of transfer of Case
There is no universal or hard and fast rule can be
prescribed for deciding a transfer petition which has always to be decided on
the basis of the fact of each case.
There is no substance in claim of accused for transfer of
case on ground that Sessions Judge was biased as he didn't allow accused to
take a sit during trial
the solitary ground for transferring the case is that
safety of the complainant would be in jeopardy if the case is not transferred
is a nebulous base 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.
The apprehension of not getting fair and impartial
inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises
The convenience of the parties including the witness to be
produced at the trial is additionally a relevant consideration for deciding the
transfer petition.
The convenience of the party doesn't necessarily mean the convenience of the alone who approached the court on misconceived notions
convenience for the aim of transfer means the convenience of prosecution, other
accused, the witness and therefore the large interest of the society
Procedure for transfer of
Case or Appeal
According to section 406(2), Supreme court may order to
transfer of case or appeal from one high court to another or one subordinate
court of high court to another subordinate court of high court, only on the
application of Attorney-General of India or advocate General of India or party
interested.
When an application is given through on behalf party then an affidavit
or affirmation is required but such affidavit or affirmation is not required
when the application filed by Advocate General of India or Attorney General of
India
Important Case Law
Ramchander Singh vs State of Tamilnadu 1978 SCC 35,
In this case Supreme Court held that, if the case is in
stage of an investigation, there is no power to transfer this during an investigation
Asha Ranjan v State of
Bihar, Writ Petition (Criminal) No. 132/2016 as decided on 15th February
2017 by the Supreme Court.
Exercising its extraordinary power under Article 142 of
the Constitution, the Supreme Court transferred notable gangster and criminal
Mohd. Shahabuddin from Bihar to Tihar Jail, Delhi, and ordered all his pending
trials shall be conducted by video conferencing by the concerned trial court.
Kaushalya Devi v Mool Raj,
(1964) 1 Cr LJ 233 : (1964) 4 SCR 884 .
Where, however, a Magistrate in whose Court the case of which
transfer is sought is pending makes an affidavit on behalf of the
administration and puts in a strong plea opposing the transfer, it is expedient
for the ends of justice without considering the merits of the contentions raised
by the petitioner to transfer the case. Because in such a case all essential
attributes of a fair and impartial criminal trial are put in jeopardy.
Inder Singh v Kartar Singh,
AIR 1979 SC 1720 : 1979 Cr LJ NOC 201 : (1979) 4 SCC 192 .
Where the petitioner was poor and the complainant the
only witness to be examined, transfer of the case from Cuttack to Chandigarh
was ordered.
Ranjit Singh v Popat
Rambhaji Sonavane, 1983 Cr LJ 436 : AIR 1983 SC 291 (1983) 1 SCC 390.
The Supreme Court allowed a transfer application where
the circumstances brought on record showed every likelihood of physical harm
being caused to the petitioner.
AKK Nambiar v Desraj (DS.P),
AIR 197 3 SC 203 : 1973 Cr LJ 270 : (1973) 3 SCC 873
Vague apprehension that the accused might transfer the
witnesses of the prosecution were not sufficient to oppose the transfer.
In Captain Amarinder Singh v
Parkash Singh Badal, (2009) 6 SCC 260 : JT 2009 (7) SC 187: 2009
while handling an application for transfer petition
preferred under section 406 CrPC, a three-Judge Bench has opined that for
transfer of a criminal case, there must be a
reasonable cause to apprehend on a part of the party to a case that justice won't be done. it's also been
observed therein that mere an allegation that there's a fear that justice won't
be wiped out a given case alone doesn't suffice. it's also required on the a
part of the Court to ascertain whether the apprehension alleged is genuine
reasonable or not, for the apprehension
must not only be entertained but must appear to the Court to be a cause for
reasonable apprehension
Gurcharan Das v State of
Rajasthan, AIR 1966 SC 1418 : 1966 Cr LJ 1071 .
The Supreme Court can, in the exercise of its jurisdiction
and power under this section, transfer a case from a Special Judge subordinate
to one High Court to another Special Judge subordinate to another High Court.
The provisions of section 7(1) of the Criminal Law Amendment Act, 1952, do not
stand in the way of such a transfer.
State v VC Shukla, 1980 Cr
LJ 965 : AIR 1980 SC 1382 : (1980) Supp SCC 249
It was held that section 7 of the Special Courts Act,
1979 [now repealed], by providing for automatic transfer of cases from High
Court to the Supreme Court did not take away the Supreme Court's power under
section 406 of the Code. There was no inconsistency between the two provisions.
Section 7 of the Special Courts Act, 1979 was a legislative decision, whereas a decision under section 406 had to be a judicial decision.
LS Raju v State of Mysore,
AIR 1953 SC 435 : 1953 Cr LJ 1833 .
It was held by the Supreme Court that for any sound and
reputable system of administration, justice should appear to be done as that it
is in fact done. Thus, where an accused appeals from his conviction for an
attempt to murder the Chief Justice of a State High Court and applies for
transfer of his appeal to some other High Court on the ground that he will not
have fair and impartial hearing of appeal in the State High Court which is
presided over by the complainant, it is a fit case for transfer.
Avtar Singh v State of MP,
1982 Cr LJ 1740 : AIR 1982 SC 1260 : (1982) 1 SCC 438 .
Where the transfer of a case from Court of Session was sought
on the ground that the Judge did not allow the accused to sit down during the trial,
the Court held that there was no substance in the allegation of unfairness or impartiality,
and therefore the transfer application could not be granted.
Inder Singh v Kartar Singh,
1979 Cr LJ NOC 201 : AIR 1979 SC 1720 : (1979) 4 SCC 192 .
Transfer may be ordered on the ground of poverty of the
petitioner.
Maneka Sanjay Gandhi v Rani
Jethmalani, 1979 Cr LJ 458 : AIR 1979 SC 468 : (1979) 4 SCC 167 .
Assurance of fair trial is the first imperative of the dispensation of justice, and the Court has to consider not the relative convenience of a party but something more substantial and impending which necessitates the Court to exercise the power of transfer. It was observed by the Supreme Court that the complainant had a right to choose the forum and the accused could not dictate where the case should be tried.
Ram Chander
Singh Sagar v State of TN, 1978 Cr LJ 640 : AIR 1978 SC 475 : (1978) 2 SCC 35
Section
406 contemplates the transfer of cases but not a transfer of investigation from one
police station to another. If the accused is directed to appear in a far-off
Court during the investigatory stage, he may move the Court for the appropriate order
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