Section 142 of the Negotiable Instruments Act lays down that the trial for an offence under Section 138 of the said Act is to be conducted by the court within whose jurisdiction the branch of the bank is situated in which the account of the payee is maintained in which the cheque is deposited.
Section 410 of the Criminal Procedure Code gives power to the Chief Judicial Magistrate to transfer a case from one Magistrate to another within his jurisdiction. This power is similar to the power of transfer of the Supreme Court under Section 406 and that of the High Court under Section 407 of the Cr.P.C.
In the case of Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 : 2000 Cri LJ 3480 : AIR 2000 SC 2293, the Supreme Court held that:
“The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”
Thus, the Supreme Court has held that convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition.
So, it all depends on facts of each case. Transferring a case is a discretionary power, which is exercised in the facts and circumstances of the case being transferred. Usually, such transfers are not ordered as a routine, but in some exceptional cases such transfer can be ordered by the court concerned, including by the CJM under Section 410 Cr.P.C.
I may point out that after transfer the case would continue from the same stage at which it was left by the previous Magistrate.
If you are not satisfied with the order of transfer, you can challenge the same in the higher courts if you have some cogent reasons to oppose such transfer.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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