Transfer of criminal case or appeal by Supreme Court from one court...

Transfer of criminal case or appeal by Supreme Court from one court to another in India

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Question: Three criminal cases have been instituted against me in three different places of the country – Pune, Bhopal and Nagpur. All these cases are bogus cases and relate to the same cause of action. I have to appear before the courts every time and it is very inconvenient for me to attend the cases. What options are available for getting the cases at one place? What are the chances of winning?

Supreme Court of India

Answer: As stated by you, the three cases are pending in two different states, therefore the only option available to you is filing a Transfer Petition (Criminal) before the Supreme Court, under Section 406 of the Criminal Procedure Code (Cr.P.C.).

S.406 Cr.P.C. reads as under:

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 one 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 party 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.”

Section 406 empowers the Supreme Court to transfer a case pending before a Court in one particular State to a Court in another State, falling in jurisdiction of different High Courts. If a case is required to be transferred from one court to another, both falling within the jurisdiction of the same High Court, then it may be advisable to file an appropriate application for transfer to that High Court under Section 407 Cr.P.C., instead of making an application before the Supreme Court under Section 406.

Coming back to the main question, Section 406 clearly lays down that the Attorney General or a ‘party interested’ can make an application before the Supreme Court. If such an application is made by any person other than the Attorney General, which means an application made by a ‘party interested’, such person will have to, in addition to the application also attach an affidavit or affirmation in support of such application.

In the Supreme Court such an application is more commonly known as a Transfer Petition. The procedure for such Transfer Petition (Criminal) is governed by Order XXXIX of the Supreme Court Rules, 2013.

If it is found by the Court that such an application for transfer was frivolous or vexatious, Section 406 and the Supreme Court Rules provide that, the Court may order the applicant to pay compensation to any person who opposed such application.

Giving a very recent example, the Supreme Court entertained a Transfer Petition [Transfer Petition (Criminal) Nos. 175-178 of 2014 along with T.P. (Crl) Nos. 22-25, 37-39 of 2015] filed by Baba Ramdev wherein he had prayed that all the various cases instituted against him (in relation to a single speech delivered by him) be clubbed together and transferred and tried at one common place. The Supreme Court observed: “If he (Ramdev) is wrong then he should be punished but simultaneously, he cannot not be prosecuted at 20 different places”.

It is pertinent to see what is meant by the term ‘party interested’ used in Section 406. Interestingly, this section has not defined the term ‘party interested’, and no strict meaning is assigned to it and thus a wider interpretation can be given to it, in cases where it serves the ends of justice. The commonly accepted connotation of the term ‘party interested’ includes all the persons who are actual parties to any of the cases sought to be transferred. Which means it includes the accused, the prosecutor, the victim, the complainant (i.e. the person who filed the FIR who may not necessarily be the victim, as, any person can get an FIR registered). In addition to the above mentioned persons, the term can be given a much wider interpretation, if it is in the interest of justice. The Supreme Court has given it the widest interpretation to also include a political opponent to be an interested party. In this particular case [K. Anbazhagan v. Supdt. of Police, (2004) 3 SCC 767], a petition was filed in the Supreme Court by General Secretary of DMK party, Mr. K. Anbazhagan, for transfer of cases pending against the then Chief Minister of Tamil Nadu Ms Jayalalithaa, stating that public confidence in the fairness of trial was being seriously undermined. The Supreme Court allowed the petition and transferred the cases from Chennai to Bangalore and held that to secure the ends of justice and a fair trial it can be said that a political opponent who is ‘vitally interested in the administration of justice in the State’ comes within the meaning of ‘party interested’ as stated in Section 406(2).

Thus it is suggested that you must file a Transfer Petition (Criminal) before the Supreme Court for transfer of the cases against you and that all cases be tried at one common place if they arise out of the same cause of action, as you have mentioned in your question. However, it is also made clear that the Supreme Court does not entertain many such Petitions which are solely based on the ground of convenience of the parties, unless extraordinary facts are brought out before the Court. Usually such petitions are allowed on other grounds such as ensuring a fair trial, where there are chances of witnesses or the prosecution being influenced. Otherwise chances of the case being allowed by the Court may not be very high.

For example, in the case of Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167, Supreme Court held as under:

2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.”

However, the following precedents may be of some help to you, where the Supreme Court has agreed to transfer the cases at one single place on ground of convenience of the party(s):

In the case of Sachin Dubey v. Shirish Kumar Bharadwaj, (2005) 11 SCC 178, a criminal complaint was filed against the son-in-law and his other family members under Section 498-A IPC, however all of these family members, against whom a complaint was filed were residing at different places, hence they came before the Supreme Court, praying that the case be tried at one common place, which would be convenient for all. The Court held as follows:

2. The respondent herein filed a criminal complaint against the petitioners herein alleging that they have demanded dowry and filed a case under Section 498-A IPC and allied offences. One of the petitioners is staying at Chennai, two petitioners at present are staying at Saharanpur (U.P.) and one of the petitioners is in Delhi. It is alleged by the petitioners that the daughter of the respondent who is wife of Petitioner 1 is at present working in Bhopal, therefore, it will be convenient for all the parties to have the trial before the court at Bhopal.

…..

4. Having regard to the facts and circumstances of the case, we feel that it is convenient for all the petitioners to have the trial in one of the competent courts at Bhopal. We transfer Complaint Case No. 65(C) of 2004 titled as Shirish Kumar Bharadwaj v. Sachin Dubey pending in the Court of SDJM, Patna, subordinate to the High Court of Bihar to CJM, Bhopal, Madhya Pradesh….”.

In the case of Shree Baidyanath Ayurved Bhawan (P) Ltd. v. State of Punjab, (2009) 8 SCC 389, it was held as follows:

14. Although Section 406 of the Code of Criminal Procedure empowers this Court to transfer a criminal case from one court situated in one State to another situated in another State but indisputably the convenience of the parties including the witnesses to be produced at the trial is a relevant consideration therefor. In Abdul Nazar Madani v. State of T.N. [(2000) 6 SCC 204] this Court has categorically held that before an order of transfer is effected, the convenience not only of the petitioner but also the prosecution, other accused and witnesses including the larger interest of the society should also be taken into consideration.”

In another case namely A.E. Premanand v. Escorts Finance Ltd., (2004) 13 SCC 527, three different cases were filed under Section 138 of the Negotiable Instruments Act in three different places, although they were arising out of the same transaction. The Court held that it would be appropriate and in the interest of justice that all these cases should be tried in one court. And hence cases pending in UP and Haryana were transferred to Delhi, where one of the said cases was already pending.

It may also be pertinent to note that it is not necessary that for the transfer of such multiple cases, the parties to all the cases be the same or common or that the complainant in all the cases be the same. For example, in the aforementioned Baba Ramdev case or in Shilpa Shetty v. Rikhab Raj Bhandari, (2009) 17 SCC 388,  the cases sought to be transferred were instituted by different people at different places i.e., the complainants were different persons. Thus even if the parties/complainants are not the same in all the cases, the Court may agree to transfer those cases at one common place, at the request of the accused (however, it is to be seen that all these cases were in relation to the same transaction.)

It is also important to note that an order by the Supreme Court directing transfer of different cases at one place or an order that the cases shall be heard at one common place does not necessarily mean that the cases shall be heard together [see, Videocon International Ltd. v. Sujana Corpn. Ltd., (2005) 13 SCC 125].

In another judgment [Ayyannar Agencies v. Sri Vishnu Cement Ltd., (2000) 10 SCC 596], although the case sought to be transferred was not in relation to the same transaction as that of the cases where the transfer was sought. But since the parties were the same, the Supreme Court agreed to transfer one case (filed under section 138 of the Negotiable Instruments Act) to the court where 5 other cases (also filed under section 138 of the Negotiable Instruments Act, but not relating to the same transactions) were pending.

In yet another case [B.R. Gupta v. Rohit Jain, (2007) 7 SCC 454], the Supreme Court allowed the transfer of a case pending in Bathinda, Punjab (where the Petitioner was arrayed as an accused) to Delhi, where another case was pending in which he was the complainant. It is noteworthy that both parties in these two cases were common, though they had opposite roles.

Interestingly, in the case of Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803, being a criminal case arising out of a matrimonial dispute, the Supreme Court refused to accept the prayer of a wife to transfer the criminal case filed by her against her husband and other family members, on the sole ground that she had now shifted from her matrimonial home (the place where she had instituted the case) to her parental home (the place where the wife now wanted the case to be transferred) and that it would be more convenient for her to prosecute the matter from where she was now residing. The Supreme Court observed as follows:

5. It is true that in cases of dissolution of marriage, restitution of conjugal rights or maintenance, this Court shows much indulgence to the wife and ordinarily transfers the case to a place where it would be more convenient for the wife to prosecute the proceedings. But a criminal case is on a somewhat different footing. The accused may not be able to attend the court proceedings at Indore for many reasons, one of which may be financial constraints, but the consequences of non-appearance of the accused before the Indore Court would be quite drastic.

6. Having regard to the consequences of non-appearance of the accused in a criminal trial, we are loath to entertain the petitioner’s prayer for transfer. In a criminal proceeding, the right of the accused to a fair trial and a proper opportunity to defend himself cannot be ignored for the convenience of the complainant simply because she happens to be the estranged wife.” (emphasis supplied)

Thus, in view of the above judgments, you may file a Transfer Petition in the Supreme Court, although success is not guaranteed.

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