Report No. 41
Chapter XLIV
Transfer of Criminal Cases
44.1. Section 52.-sub-sections (1) to (7) formally revised.-
Sub-section (1) of section 526 sets out elaborately the circumstances in which a High Court may order transfer of a case or appeal from one subordinate Court to another or from any subordinate Court to itself. In contrast, the analogous provision made in section 527(1) empowering the Supreme Court to transfer criminal cases and appeals is very simple: it may direct transfer whenever it is "expedient for the ends of justice". Of the five clauses in section 526(1), clause (c.-"that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same.-would seem to be a minor and unimportant matter, and in any event covered by the more general provision in clause (d). By way of simplification, clauses (c), (d) and (e) may be combined as follows.-
"(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice".
With reference to clause (i) of sub-section (1), which enables the High Court to order that any offence be inquired into or tried by any Court not empowered under sections 177 to 184, a controversy exists1 as to whether the High Court can order transfer of a case from a Court which does not have jurisdiction under those sections. There, however, seems to be no need to alter wording of clause (i). In view of the abolition of commitment proceedings as such, clause (iv) may be formally amended to rea.-
"(iv) that any particular case be committed for trial to a Court of Session."
While no changes of substance are required in sub-sections (1A) to (7) of section 526, a few drafting changes and a more logical re-arrangement of the provisions seem desirable. Sub-sections (1) to (7) may be revised as follows.-
"526. Power of High Court to transfer cases and appeals.- (1) Whenever it is made to appear to the High Cour.-
(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 end to 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 184 (both inclusive) but in other respects competent to inquire into or try such offences;
(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 such criminal court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial 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, 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 Court 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 application 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 or appeal from any subordinate Court, the High Court may 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 344.
(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 application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of 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 sub-section (2) of section 197."
1. Pokker, AIR 1950 Ker 53 (Reviews Cases).
44.2. Section 526(8.-compulsory adjournment on application for transfer.-
Section 526(8) is a peculiar provision whereby a subordinate Court is obliged to stop all proceedings on the mere intimation by an interested party that he intends to apply to the High Court for a transfer of the case. The principle that if an accused person has reasonable cause to believe that he may not receive a fair trial at the hands of a particular Judge, he should have the right to have his ease transferred to another Court is unobjectionable, as also the corollary that the proceedings should not be continued while such an application for transfer is pending before a higher Court. However, the provision for a mandatory stay of the case on his mere intimation to the Court that he intends so to apply has been subject to gross abuse.
44.3. Lowndes Committee's criticism of the provision.-
This provision has come in for scrutiny and criticism on several occasions. As far back as 1916, the Lowndes Committee which scrutinised the 1914 Bill to amend the Code observed.-
"There is no doubt that some of the provisions of section 526 are subject to constant abuse, and that a party, against whom a criminal case is apparently going, will frequently apply for a transfer on manifestly insufficient grounds. We are also satisfied that advantage is frequently taken of the section to obtain an adjournment which would otherwise be refused, without the least intention of making any application to the High Court. It is reported to us, for instance, that in the Dacca Division during three years, adjournments were obtained in no less than 125 cases in which no attempt was made to move the High Court."
That Committee was of the opinion that "penalising an improper application" would put an end to the widespread abuse of the provision.
44.4. Select Committee's views.-
This criticism by the Lowndes Committee was endorsed by the Select Committee on the 1921 Bill to amend the Code. It observed.-
"We have found section 526 somewhat difficult to deal with. One class of opinions presses for greater safeguards against frivolous, vexatious or dilatory applications for transfer. Another class depreciates any measure which makes a transfer more difficult to obtain. We think it is unavoidable to retain in the Code some provision for the compulsory adjournment of a case when an intention to apply for a transfer has been notified. But we recognise that the provisions of the section, as they stand, have lent themselves to gross abuse, and, therefore, we feel that greater safeguards are necessary."
The section was amended in 1923 whereby a new sub-section (6A) was added giving the High Court power to order costs if the application for transfer was found to be frivolous or vexatious.
44.5. Further amendment in 1932.-
However, the expected improvement did not take place, and a further amendment had to be resorted to in 1932. The Statement of Objects and Reasons for the 1932 Bill mentioned that "the practical working of this new procedure has been carefully observed by Government over a considerable period, and they have come to the conclusion that it lends itself to grave abuse and is calculated to defeat the ends of justice." In a judgment1 of the Calcutta High Court, in was forcefully observed.-
"The position created by section 526(8) is truly amazing, one effect being that no accused person can be convicted except with his own consent. No discretion is given to the Court by the section. If the accused notifies his intention to make an application to the High Court for transfer, the trial must be adjourned immediately. There is no limit to the number of such notifications which may be given during the course of any trial. x x x The abuse of process which sub-section (8) makes possible obviously may be aggravated to almost any extent, where there is a joint trial and each accused person is represented by a different pleader."
The provision was amended is 1932, whereby sub-section (8) was re-cast in more or less its present form and sub-section (6A) was amended providing for payment of compensation not exceeding Rs. 250 to the opposite party if the application for transfer was found to be frivolous or vexatious.
1. Neamat Shah, ILR 59 Cal 482.
44.6. Sub-sections (8), (9) and (10) to be omitted.-
These changes also have failed to improve the situation. In fact, the amendment of 1955 giving the power of transferring cases to Sessions Judges has naturally led to an increase in the number of transfer applications and consequent delay in the disposal of a larger number of cases. Instances where after securing adjournment applications for transfer are either not made or not seriously pressed have not decreased in number. We are, therefore, of the opinion that sub-sections (8), (9) and (10) of section 526 which provide for a mandatory stay in trials and appeals should be deleted.
In their place, power should be given to the Court hearing the application for transfer to stay the proceedings in the lower court pending the disposal of the application. This should not lead to any practical difficulties since, after the 1955 amendment, most applications for transfer are filed in the Sessions Courts and stay could be obtained without delay. We would also recommend that the maximum compensation that can be awarded by a High Court under sub-section (6) should be raised from Rs. 250 to Rs. 1000, and that a Sessions Court should be empowered to award compensation upto Rs. 250.
44.7. Section 526A to be omitted as obsolete.-
Section 526A requires the High Court to transfer the case for trial to itself, where any person subject to the Naval Discipline Act, the Army Act or the Air Force Act is accused of any such offence as is referred to in proviso (a) to section 41 of the Army Act, and the Advocate-General applies for such transfer. The three Acts mentioned in this section are Acts of the British Parliarpent which governed the British personnel serving in India. The section has become obsolete after independence and should be omitted.
44.8. Section 52.-sub-section (3) omitted.-
Section 527 deals with the transfer of cases by the Supreme Court. Sub-section (3) provides that the court to which a case has been transferred under this section may act on the evidence already recorded by the former court unless the accused demands a re-trial. We do not think that any such special provision is required. Sub-section (3) may be omitted, so that the position as regards re-trial of the case after a transfer by order of the Supreme Court will be exactly the same as in a transfer under any other provision of the Code.
We considered the question whether a provision similar to section 25(2) of the Code of Civil Procedure (about the law applicable to the transferred proceedings) should be inserted in section 527. Since it is fairly clear that the substantive law originally applicable to the case will continue to apply, no express provision is necessary.
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