Transfer of a Case from one Court to another

What is a transfer of a case?

The formal laws of procedure codified under the code of civil procedure and the code of criminal procedure recognize the rights of every litigant to seek a transfer of their case to a court, different from the one in which it was first instituted. Transfer of a case is the procedure through which the Indian judiciary is empowered with the discretion to hand over a case from one court to another to meet the ends of justice. This power can be exercised by courts both on their own motion and upon a suitable application being made by parties to a case, highlighting the relevant grounds commanding the exercise of this discretionary power. The Indian judiciary is a structured hierarchy of courts across the length and breadth of India with the supreme court representing the apex court of appeal. The judiciary provides to each person a competent forum to seek resolution of disputes and enforcement of their legal rights. This is ensured through the numerous district courts, tribunals, commissions, and high courts exercising jurisdiction over their own domains, etched out through territorial demarcations.

This system provides every litigant the privilege to seek out the most appropriate forum to initiate legal action and seek redressal and proper adjudication of its dispute. Once legal action is commenced before a particular court, the baton passes over to the opposing party i.e., the defendant to either accede to the jurisdiction of such court or in the alternative, make out an application seeking transfer of the case to another court deemed more appropriate by the defendant.

A defendant may oppose the place of suing for a plethora of reasons and the procedural law of the land not only acknowledges this predicament but also enables every litigant to seek such transfer of its case to a different court. Such an application can be made out under the express provision of both the code of civil procedure and the code of criminal procedure.
 

Transfer of civil cases

The entire procedural law regarding the admission and adjudication of civil suits is codified under one statute i.e., the code of civil procedure, 1908. The code of civil procedure regulates every action before civil courts under the judiciary and carves out the rules of procedure from the very initiation to the execution of an order or decree of a civil court. Provisions under the code of civil procedure carve out the rights of the defendant in a civil action and also the power of civil courts to transfer a case from one court to another.

Section 22 of the Code of Civil Procedure relates to the power to transfer suits that may be instituted in more than one court. As the letter of section 22 suggests, this provision pertains to matters which are capable of being instituted in more than one court due to the shared jurisdiction in certain cases. Therefore, as per section 22 when a suit capable of being instituted in any one of two or more courts, is in fact instituted in one such court, the defendant is accorded the right to make out an application to the such court seeking the transfer of the case to one of the other courts where the suit could have been validly instituted. The provision makes it mandatory for the defendant in such a case to make such application at the earliest possible opportunity and to give proper and sufficient notice of its application to the plaintiff i.e., the person who instituted the suit. This enables the plaintiff to put forth its objections, if any, to the defendant's application after which the court determines in which of the several courts having jurisdiction must the suit proceed.

Section 23 of the Code of Civil Procedure complements the above provision by specifying to which court an application under section 22 seeking transfer of a civil suit lies. Section 23 caters to every contingency by way of three subsections which are detailed below: Section 23 (1) applies to cases where the several courts having jurisdiction to try the suit are subordinate to the same appellate court. This provision states that in such a scenario, the application under Section 22 shall lie before such common appellate court, which shall determine the court before which the suit must proceed.

Section 23 (2) applies to cases where the several courts having jurisdiction to try the suit are subordinate to different appellate courts but to the same high court. This provision states that in such a scenario, the application under Section 22 shall lie before such common high court, which shall determine the court before which the suit must proceed. Section 23 (3) finally applies to cases where the several courts having jurisdiction are subordinate to different high courts. This provision states that in such a scenario, the application under section 22 shall lie before the high court, within the local limits of whose jurisdiction, the court in which the suit is brought is situated.

Therefore, a combined understanding of sections 22 and 23 lay down the procedure for a defendant to make an application seeking transfer of a case and also aids determine the court before which such application must be brought.

In addition to the above provisions, the code of civil procedure also grants a general power of transfer and withdrawal of suits to not just the parties associated with the case but also to the district and high courts. Section 24 enshrines this general power and states that on an application by any party with notice to the other parties, or of its own motion, a high court and district court can at any stage of the proceedings, order the transfer of any suit, appeal or proceeding pending before it to any court subordinate to it. In addition to an order of transfer, a district court or high court can also withdraw any suit, appeal, or proceeding pending in any court subordinate to it and: -

1. Either try to dispose of the same itself or

2. Transfer the same for trial and disposal to any other competent court subordinate to it or

3. Retransfer the same for trial and disposal to the court from which it was first withdrawn.

Therefore, an application can also be made by any party associated with a case apart from the defendant alone to seek transfer of a case for reasons stated therein. Further, the district court and the high court are also independently empowered to suo motu i.e., on their own motion to either transfer or withdraw and transfer a case from any courts subordinate to them.

In addition to the powers of the lower judiciary and the high courts, the code of civil procedure also carves out an independent power of the apex court of the judiciary under Section 25 to direct the transfer of a case. As per this provision, any party to a suit, after notice to the other parties can make out an application before the supreme court seeking transfer of the suit from a high court or a civil court situated in one state, to a high court or civil court in another state. The supreme court in such a case must accord sufficient opportunity to all parties to be heard both for and against allowing the application, which can be made in regard to any suit, appeal, or proceedings pending in a court subordinate to it. Section 25 further stipulates that all such applications must be supported by an affidavit and the supreme court while dismissing an application under this section can also impose a cost upon the applicant in favor of the parties opposing it as compensation.
 

Transfer of criminal cases

The code of criminal procedure is the primary Indian legislation on the procedure for administration of substantive criminal law in our nation. It lays down the procedure and provides the machinery for investigation of crimes, collection of evidence, apprehension and arrest, and the numerous procedural technicalities of trial for the determination of guilt or innocence of the accused. Therefore, akin to the code of civil procedure, the process, and rights pertaining to the transfer of criminal cases are also enshrined in the code of criminal procedure in great detail which is discussed herein below.

Chapter XXXI of the code of criminal procedure codifies the law relating to the transfer of cases which encompasses sections 406 to 412.

Section 406 pertains to the power of the supreme court to transfer criminal cases and appeals. Under this provision, the supreme court is not empowered to make an order for the transfer of a criminal case on its own motion but can only act upon an application made to it either by the attorney general of India or a party interested in the case. An applicant before the supreme court under this provision must satisfy the court that an order of transfer under section 406 is essential to meet the ends of justice. The supreme court, if satisfied with the reasons highlighted in the application, can make an order transferring the case 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. The supreme court while dismissing an application under this provision can further order the applicant to pay a sum by way of compensation to the opposing parties if it finds the application to be frivolous or vexatious.

Section 407 similarly grants the high court the power to transfer criminal cases and appeals from one court subordinate to it to any other court subordinate to it. In addition to ordering the transfer of matters, the high court is also empowered to withdraw matters from courts subordinate to it and try them by itself. The provision further lays down the grounds upon which an application for transfer can be made which are:

1. When it apprehends that a fair and impartial inquiry cannot be had in any criminal court subordinate to it or

2. That some question of law of unusual difficulty is likely to arise or

3. That an order under this section is required by any provision under the code of criminal procedure, would tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice.

The high court can invoke this provision on its own motion or on the report of a lower court or even on an application by an interested party to the case. The high court can also impose a cost upon the applicant in favor of the opposing party as compensation while dismissing frivolous and vexatious applications.

Section 408 of the Code of Criminal Procedure enshrines the powers of the sessions judge to transfer criminal cases and appeals. Under this provision, akin to the powers of the high court, the session judge is empowered to transfer cases between subordinate courts within its sessions division. It may act on its own motion or either upon an application from an interested party or upon the report of a lower court to transfer the case. The grounds and procedure applicable to an application under this provision before the sessions judge is the same as under section 407 for the high court.

Section 409 of the Code of Criminal Procedure empowers the sessions judge to withdraw and recall cases and appeals in subordinate courts within its sessions division and either try them itself or make them over in accordance with the code to any other subordinate court from trial or hearing.

Catering to the powers of transfer at each rung of the judiciary, sections 410 and 411 of the code of criminal procedure similarly cull out the powers of transfer and withdrawal provided to judicial magistrates and executive magistrates.

The final provision under section 411 of this chapter makes it mandatory for sessions judges and magistrates making any orders under sections 408-411 to record reasons for making such orders.
 

Grounds permitting transfer of the case from one court to another

The law recognizes numerous grounds which can successfully invite an order for the transfer of cases from one court to another which are discussed hereinbelow: -

1. Justice: The primary ground permitting the transfer of cases from one court to another is to meet the ends of justice. This solitary ground has wide connotations and ensures that any factual matrix commanding an order of transfer in the interests of justice is made. It ensures justice for all litigants in varying facts and circumstances. This provides the judiciary with vast discretionary powers to make sure that wherever it is deemed appropriate to meet the ends of justice, the courts are competent to make an order of transfer and are not tied down by the law.

2. Inquiry reports of superior judicial officers: These reports when making out strong reasons against permitting the continuation of a trial in a particular forum are a valid ground for seeking an order of transfer.

3. The report or opinion of a trial court: Such a report deeming transfer of a case necessary due to the involvement of a substantial question of law that would be better suited to a court of superior jurisdiction, is a valid ground.

4. Corruption: Another ground permitting the transfer of a case is the apprehension of corruption and/or collusion by a party to the case which would render the judicial process futile in a particular forum.

5. Strained relations and or unprincipled relations between the advocate or an officer of the court or judicial officer is also a ground to seek transfer of a case to another impartial court.

6. Convenience of the parties being better suited to a case being tried in a different court is another ground to seek transfer of a case.

Why do you Need a Lawyer?

A lawyer understands the nitty-gritty of the procedural as well as substantial aspects of the law. A civil lawyer or a criminal lawyer , depending upon the kind of case will be able to guide you in the right direction regarding whether a transfer of a case should and can be sought, and if it can be, the procedure involved in getting the desired transfer. Even if one party is seeking a transfer and you being the other party are against it, you need the advice of a lawyer in order to give your arguments against it in court.

FAQs: Transfer of a Case

Q. How much does it cost to transfer a case from one state to another?
A. The cost of transferring a case from one state to another depends on various factors like legal fees, documentation charges, and court fees, all of which differ from case to case.

Q. How long does it usually take for the Supreme Court to decide on Transfer Petitions?
A. Generally, the process takes about two to three months from the initial hearing to adjudication.

Q. What are the advantages of a transfer case?
A. A transfer case ensures impartiality by allowing a judge more familiar with laws, aids in reducing case backlogs, and follows the doctrine of forum convenience for fair trials. Moreover, it considers personal circumstances affecting the party seeking transfer, like potential injustices or safety concerns.

Q. What are the two main purposes of a transfer case?
A. The two main purposes of a transfer case are to ensure justice and convenience for the involved parties. It guarantees a fair trial when there is a genuine fear of injustice and addresses personal hardships, like job loss and health concerns, that could cause irreparable harm if the proceedings remain in the same state.

Q. Why do transfer cases fail?
A. Transfer cases can fail because of concerns over unfair treatment or injustice, the burden of proving irreparable harm if the case is not transferred, improper venue, and lack of qualified judges to hear the case in the current court.

Q. Who has the power of transfer cases?
A. The Supreme Court has the power to transfer cases under Sections 25 Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure. Additionally, depending on the case, the authorities that also have the power to transfer cases are High Courts, Sessions Judges, Chief Judicial Magistrates, and Executive Magistrates.

Q. Can I directly approach the High Court to transfer a case within the same Sessions division?
A. No, unless your transfer request has been rejected by the Sessions Judge, you cannot approach the High Court.

Q. How to transfer a case from a district court to another district court?
A. Transferring a case between district courts depends on whether it's within the same state or between states. Within a state, file a petition at the High Court using Section 25 of the Code of Civil Procedure. For transfers between states, the Supreme Court handles it. Also, Section 407 of the Code of Criminal Procedure allows the Supreme Court to transfer criminal cases among courts of equal or higher jurisdiction.

Q. What does a transfer petition mean?
A. A Transfer Petition is a petition filed before the court to transfer a case from one court to another court. The court then reviews the request and decides whether it can transfer the case based on the specified grounds.

Q. What are the grounds to transfer a case?
A. Transfer cases from one state to another can be sought on grounds that include the personal interest of the judge or connection with a party, preformed opinions, or conduct preventing a fair trial. Additionally, the High Court can authorize transfers when it deems that the fundamental right to a fair trial, as guaranteed by Article 21 of the Indian Constitution, cannot be ensured in the current jurisdiction.

Q. What are the grounds on which a transfer petition can be sought in matrimonial cases?
A. Grounds include prejudice in a particular jurisdiction, threat to life, medical issues, lack of support, absence of income, and the denial of justice in the chosen forum.

Q. Which section is for the transfer of a case from one court to another?
A. The transfer of a case from one state to another is regulated by the Code of Civil Procedure (CPC) and the Code of Criminal Procedure (CrPC). The CPC, 1908, grants High Courts or District Courts the authority to transfer suits or proceedings from one court to another competent court. Section 24 of the CPC allows for transfers at any stage, considering facts and law without specific grounds outlined. Regarding criminal cases, provisions within the CrPC such as Sections 191, 402, 406, 407, and 408 facilitate transfers within states or between different courts. Additionally, Article 139A of the Constitution empowers the Supreme Court to withdraw cases from High Courts and try them independently, along with permitting transfers between High Courts.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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