Before asking whether the case can be moved, it is worth understanding why it is where it is, because a great many transfer applications are really complaints about a rule the Sanhita states in one line.
Why the case is in that district
Section 197 provides that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Section 198 extends that where it is uncertain in which of several local areas the offence was committed, where it was committed partly in one area and partly in another, where it is a continuing offence, or where it consists of several acts done in different local areas, in each of which case any of those courts may try it. Section 199 adds that where an act is an offence by reason of something done and a consequence which has ensued, it may be tried where the thing was done or where the consequence ensued.
So a case filed four hundred kilometres away is often filed in a court that has jurisdiction. Jurisdiction and convenience are separate questions, and a transfer petition is an application about the second.
| Move required | Provision | Forum | Precondition |
|---|---|---|---|
| From one criminal court to another in the same sessions division | Section 448 BNSS | The Sessions Judge of that division | Expedient for the ends of justice |
| From one sessions division to another within Karnataka | Section 447 BNSS | High Court of Karnataka | One of the grounds in Section 447(1) |
| Within the same sessions division, before the High Court | Proviso to Section 447(2) BNSS | High Court, but only after the Sessions Judge | An application to the Sessions Judge must have been made and rejected |
| From a court in one State to a court in another State | Section 446 BNSS | Supreme Court | Expedient for the ends of justice, on the application of a party interested |
The grounds the High Court actually acts on
Section 447(1) sets out three. That a fair and impartial inquiry or trial cannot be had in any criminal court subordinate to the High Court. That some question of law of unusual difficulty is likely to arise. Or that an order is required by a provision of the Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. On any of those the High Court may order that the offence be inquired into or tried by a court not otherwise qualified by the place of trial provisions but competent in other respects, that a case or appeal be transferred to another criminal court of equal or superior jurisdiction, that a case be committed for trial to a Court of Session, or that a case or appeal be transferred to and tried before the High Court itself.
Section 447(2) allows the High Court to act on the report of the lower court, on the application of a party interested, or on its own initiative. The proviso is the trap. No application lies 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 that transfer has been made to the Sessions Judge and rejected by him. Petitions are returned on that ground every week.
The procedure, which has teeth
- The application is made by motion and, except where the applicant is the Advocate General, must be supported by an affidavit or affirmation setting out the facts on oath
- Where the applicant is an accused person, the High Court may direct him to execute a bond or bail bond for the payment of any compensation it may award if the application fails
- Written notice of the application, with a copy of the grounds, must be given to the Public Prosecutor, and no order is made on the merits unless at least twenty four hours have elapsed since that notice
- The High Court may stay the proceedings in the subordinate court pending disposal, on such terms as it thinks fit, though the stay does not affect that court's power of remand
- Where the application is dismissed as frivolous or vexatious, the High Court may order the applicant to pay compensation to the person who opposed it, in such sum as it considers proper
- Before the Sessions Judge, the same procedure applies under Section 448(3), except that the compensation for a frivolous application is capped at ten thousand rupees
The costs provision is not decorative. It exists because transfer applications are a well known delaying tactic, and a petition built on vague insinuations rather than particulars is the kind that attracts it.
What works and what does not
Allegations that a fair trial is not possible have to be pleaded with particulars: dates, orders, what was said and in whose presence. A general assertion of apprehension gets nowhere and is likely to be read as an attack on the judge, which makes the rest of the case harder. Local hostility that is demonstrable, meaning organised pressure, a hostile crowd at every date, or sustained local publicity of the kind our note on media trials and what television can legally say about a case deals with, is a different matter and is capable of proof.
Convenience arguments are weaker in criminal cases than clients expect, and this is where the comparison with matrimonial litigation misleads. In a transfer petition arising out of a divorce or a maintenance case the Supreme Court gives real weight to the difficulty a woman faces in travelling with a young child, and our guides on transfer petitions in matrimonial cases and on how a divorce case is transferred set out that line. In a criminal trial the prosecution witnesses, the investigating officer and the exhibits are all in the district where the offence occurred, and moving the case moves all of them. The general convenience the section speaks of is the convenience of the parties and witnesses taken together, not of the accused alone.
Section 355(1) allows the court, at any stage and for reasons recorded, to dispense with the personal attendance of an accused who is represented by an advocate where it is satisfied that attendance is not necessary in the interests of justice, and the Explanation says personal attendance includes attendance through audio-video electronic means. In a very large number of cases that application solves the actual problem, which is travel, at a fraction of the cost and without the risk of a costs order.
What I tell clients weighing this up
A transfer petition buys a change of courtroom and costs you time, money and, if it is refused, a certain amount of goodwill in the court you have to return to. It is worth it where the trial genuinely cannot be fair, or where several connected cases should be heard together, or where a question of law of unusual difficulty makes the transfer sensible on its own terms. It is rarely worth it because the drive is long. Try the dispensation application first, ask for consecutive dates rather than scattered ones, and see whether the court will record your appearance by video conferencing. If those fail and the problem is real, file the transfer petition properly, on affidavit, with particulars and with the Sessions Judge stage completed where the proviso requires it. A petition filed in the right forum with the right groundwork is decided on its merits, and one filed as a delaying move is recognised immediately.