India: Transfer of Cases in India

 

Introduction

The Indian Legal System recognises that varied instances may arise and create a need for either of the parties to change the seat of a competent court where a trial/suit or any other proceedings may be instituted/on-going.

Territorial jurisdiction is the venue where the suit or trial in a particular proceeding is permissible to be instituted. The law at several instances provides for multiple jurisdictions, wherein a suit or proceedings may be initiated, and therefore a party may choose the jurisdiction of its convenience to institute the proceedings.

Both civil and criminal law provide an aggrieved party with the remedy of seeking transfer of proceedings from one forum to another upon making out the contingent circumstances. A need for transfer of proceedings may arise in case of jurisdictional error, apprehension of prejudicial trial, financial difficulty/no income source, medical condition, among other grounds. However, a party seeking transfer of proceedings must demonstrably illustrate a case of difficulty beyond mere inconvenience.

Ordinarily, courts recognize the need for transferring proceedings when an actual difficulty arises based on the above-mentioned grounds. In matrimonial cases, where multiple proceedings occur across different territorial jurisdictions, courts often allow consolidation into a single common jurisdiction. Another scenario for transfer arises when there’s a reasonable fear that the accused will not receive a fair trial due to bias from the bar or bench, especially during times of unrest.

More particularly, the Supreme Court of India has been vested with the powers to transfer both civil as well as criminal trials from one court to another and is impowered to invoke its extraordinary jurisdiction in permitting the transfer of proceedings in cases of palpable and explicit miscarriage of justice.

A recent example is the transfer of all petitions challenging the IT Rules 2021 pending across different High Courts. The Supreme Court upon hearing the matter directed all such pending petitions across High Courts to be transferred to the Delhi High Court and be heard together. Such decision allows an analogous hearing of common issues and avoids conflicting opinions and ambiguity.

Transfer of Civil Suits/Appeals/Other Proceedings

The Code of Civil Procedure provides that in cases where a suit is permitted to be instituted in one of two or more courts and is instituted in one of such courts, then in such cases, the other party may apply to have the suit transferred to another court.

However, such discretion must be exercised at the earliest opportunity and the competent court, upon considering the objections of the other parties, may proceed to determine the court in which the suit shall proceed.

Where Does an Application Lie?

The aggrieved party may approach the competent Appellate Court or the Court of Appeal, in cases where several courts with jurisdiction are subordinate to the same Appellate Court.

In cases where the competent Courts are subordinate to different Appellate Courts, the aggrieved party may file an application for transfer of proceedings before the High Court, in case the competent courts are subordinate to the same High Court.

In the third instance, if the competent courts are subordinate to different High Courts, an application may be preferred before the High Court under whose jurisdiction the competent court is situated.

Power To Transfer/Withdraw Cases on its own Motion

The High Courts and the District Courts have additional powers under the provisions of the Code of Civil Procedure. They can transfer any ongoing suit, appeal, or other legal proceeding to a court subordinate to them, provided that the court is competent to try and dispose of the case.

In addition to the aforesaid, the High Court or the District Court may also withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try and dispose of the same, or retransfer it to the Court it was withdrawn from.

Power of Supreme Court to Transfer Civil Cases

The Supreme Court is vested with vast powers under the Code of Civil Procedure to transfer any case, appeal or other proceedings from one High Court to another. It may also transfer cases from a Civil Court in one state to a High Court or other Civil Court in another state. A party may directly approach the Supreme Court with an application seeking transfer of proceedings from one forum to another.

However, such applications are entertained at the discretion of the Supreme Court and used sparingly in instances where it is satisfied that such transfer is necessitated and expedient for the ends of justice.

Transfer of Matrimonial Cases

The Supreme Court is frequently confronted with applications seeking transfer of divorce/custody/maintenance and other incidental proceedings pertaining to matrimonial disputes. Such applications are generally brought on account of difficulty in travelling by either of the parties since the institution of the suit may be in the jurisdiction where the matrimonial home is situated, whereas the party may be residing in another place.

Compelling Proof of Difficulty

The mere inconvenience and discomfort in being present and contesting a proceeding in a particular jurisdiction is not ordinarily considered by the Court and there must exist compelling proof on account of which the party seeking such transfer is unable to attend the proceedings in the jurisdiction where they have been instituted.

Specific Grounds for Transfer

The party seeking indulgence by the Court for the transfer of on-going proceedings, must make specific grounds for such transfer which are tantamount to miscarriage of justice. A non-exhaustive list of grounds which have been considered by the Courts are enumerated as under:

1. Jurisdictional error
2. Threat to life
3. Prejudice in existing jurisdiction/apprehension of bias
4. Financial difficulty and lack of support/No income
5. Medical conditions
6. Old and ailing parents/dependants
7. Ensuring a fair trial

 

Transfer of Criminal Trials

The Code of Criminal Procedure encompasses analogous provisions which permit the transfer of an ongoing trial and empower the Session Court, High Court & the Supreme Court under various provisions.

The hierarchy of courts in the criminal legal system is also vested with the power to transfer and withdraw any proceedings which started before the Court subordinate to it and even empowers them to dispose of the same after transferring the proceedings to itself.

Power of Sessions Judge & High Court

The Sessions Judge as well as the relevant High Court is competent to transfer an ongoing case from one criminal court to another within its jurisdiction, to meet the ends of justice. Such transfer can be initiated at the instance of a report submitted before it by the Court below, or by way of an application made in this regard by an interested party or may even be exercised by the Court on its own motion.

Power to Stay Proceedings Before Subordinate Court

The High Court is vested with the power to stay the ongoing proceedings before the subordinate court, till such time that an application seeking transfer of such proceedings is pending adjudication before itself.

However, such stay of proceedings is granted at the discretion of the High Court and is permitted only in cases where it deems fit in the interest of justice. The power to stay proceedings is used judiciously by the Courts, keeping in mind the balance of interests of all parties concerned, while also ensuring that the criminal justice system is not compromised.

Transfer of Criminal Proceedings by Supreme Court

The Code of Criminal Procedure permits any aggrieved party to seek transfer of a case from one High Court to another or from a Criminal Court subordinate to the High Court to another Criminal Court of equal or superior jurisdiction.

The Supreme Court has categorically held that such power to transfer on-going trial is an extraordinary power and is to be used sparingly in cases wherein there is an explicit need to meet the ends of justice. Therefore, special circumstances and reasons must be clearly made out by the party seeking such transfer.

Transfer of Investigation Impermissible

The Hon’ble Supreme Court has held in a catena of judgments that Section 406 of the Code of Criminal Procedure does not permit itself to transfer any on going investigation from one jurisdiction to another or from one agency to another. It has been further clarified that powers under this Section can only be used to transfer a case/appeal pending before a court to a court in another jurisdiction.

The Hon’ble Supreme Court in the Arnab Goswami’s case (202) has reiterated that “An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in rear dot the investigating agency.”

Inter-Play of Article 142 and Transfer of Investigation

The Supreme Court is vested with vast powers under Article 142 of the Constitution of India which empowers it to pass any orders as it deems necessary to conduct complete justice in a given case.

In a recent judgment titled Neelima Suri vs. State of Madhya Pradesh wherein TP(Cr.) No. 597/2022 dated 03.04.2024, wherein both the parties had filed cross-FIR’s against each other in different states and jurisdictions, the Hon’ble Supreme Court, while being cognizant of its limitations under Code of Criminal Procedure for transfer of on-going investigations, was of the opinion that in such matters wherein both parties have filed cross FIRs, the same can be treated broadly as cross cases.

It was of the considered opinion that all the FIRs must be investigated together in order to get a comprehensive understanding on the case, and opined that isolated investigations result in an incomplete picture and may produce contradictory conclusions which may ultimately lead to contrasting criminal proceedings which may require additional investigation.

The Apex Court, by implementing its powers under Article 142 of the Constitution of India proceeded to permit the transfer of all the FIRs in the interest of administration of criminal justice to one and the same agency so that a complete impartial and fair investigation can be conducted.

We can assist you with concerns related to transfer of cases in India and the associated case-specific nuances. You can submit a query below and get in touch with us.

 

For further information, please contact:

Gautam Khurana, Managing Partner

India Law Offices, New Delhi

e: g.khurana@indialawoffices.com

t: +91 11 24622216

 

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