04 October 2012
high court can pass orders on application by wife for transfer of case ◦Typical grounds taken by wife in the transfer petitions are below. ■Having a child ■Travel is unsafe being a lady ■Expenses required for travel ■Threat to life at Husband’s place ■Husband is very influential in his place ■Inconvenience to travel long distance
05 October 2012
Dear Querist according to Cr.PC chapter XXXI is related to transfer of cases u/s 406 to 412 406. Power of Supreme Court to transfer cases and appeals.
(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 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.
(2) The Supreme Court may act under this section only on the application of the Attorney General of India or of a partly interested, and every such application shall be made by motion, which shall, except when the applicant 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 applicant 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.
05 October 2012
407. Power of High Court to transfer cases and appeals.
(1) Whenever it is made to appear to the High Court-
(a) That a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) That some question of law of unusual difficulty is likely to arise; or
(c) That an order under this section is required by any provision of this Code, or will tend be the general convenience of the parties or witnesses, or is expedient for the ends of, justice, it may order-
(i) That any offence be inquired into or tried by any court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) That any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) That any particular case be committed for trial of to a Court of Session; or
(iv) That any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Curt may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor, notice in, writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the applications unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case of appeal from any subordinate court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate court's power of remand under section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197.
05 October 2012
408. Power of Sessions Judge to transfer cases and appeals.
(1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session's division.
(2) The Sessions Judge may act either on the report of the lower court, or on the application of a party interested or on his own initiative.
(3) The provisions of sub-sections (3), 4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under subsection (1) of section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand" rupees occurring therein, the words "two hundred and fifty rupees" were substituted.
05 October 2012
05 October 2012
I endorse the views of S/Shri Ajay Sethi and Nadeem Qureshi.