JAMIA MILLIA ISLAMIA

TRANSFER PETITION BEFORE

SUPREME COURT
LAW & COURT MANAGEMENT

SUBMITTED TO – Dr. Prof. S.Z AMANI

SUBMITTED BY – SHAHBAZ KHAN MEHAR
SEM – X
SEC. – B
ROLL NO. – 26
ACKNOWLEDGEMNET
Firstly, I would like to express my profound sense of gratitude towards the
Almighty “ALLAH” for providing me with the authentic circumstances which
were mandatory for the completion of my research work.
I am also thankful to Dr. Prof. S Z AMANI, for his invaluable support,
encouragement, supervision and useful suggestions throughout this research
work. His moral support and continuous guidance enabled me to complete my
work successfully. His intellectual thrust and blessings motivated me to work
rigorously on this study. Infact this study could not have seen the light of the
day if his contribution had not been available. It would be no exaggeration to
say that it is his unflinching faith and unquestioning support that has provided
the sustenance necessary to see it through to its present shape.
TABLE OF CONTENT
ABSTRACT
INTRODUCTION
TRANSFER OF CASES UNDER Cr.P.C.
GROUNDS ON WHICH CASES CAN BE TRANSFERRED
TRANSFER OF CASES UNDER CONSTITUTION
TRANSFER OF CASES UNDER CPC
OBJECT OF TRANSFER OF CASES
ILLUSTRATIVE CASES
CONCLUSION
BIBLIOGFRAPHY
ABSTRACT
The judiciary had become paramount institution for identify of any legal
dispute. The judiciary has playing a vital role keep an eye on the legislature and
executive authorities under their control of arbitrary actions and to keep a check
on their activities on which by any hidden interest. Justice can only be achieved
if the court deals with both the parties present before it eqaually, impartially and
even-handedly, hence though a plaintiff has a right to choose his own forum,
with a view to administer justice fairly, impartially, and even-handely, a court
may transfer a case from one court to some other court. Normally this right of
the plaintiff cannot be curtailed, controlled or interfered with. But the said right
is controlled by the power vested in superior courts to transfer a case pending in
one inferior court to another or to recall the case to itself for hearing and
disposal.
INTRODUCTION
The whole judiciary is seen with complete respect and with an full expectation
that the judiciary will be very fair and it will be equitable justice to the person
who comes before them or pleading before them for fair redressal of any
complaint of grievance. The court should always follow a fair and equitable that
parties should not only obtain fair justice but the justice should be given in such
a way that a clear image should be made to each and everyone that justice is
made under fair and equitable terms. The judiciary is the body to deliver justice
and has always to maintain a very strict manner towards fairness in procedures
and fairness. In order to save the good trust of the courts and the maintain high
order of moral and fair standards between the members of judiciary the code of
Criminal Procedure and the civil procedure code have reasonable Transfer of
cases from one court to another.
The grounds to transfer cases from one court to another court. The first and
foremost intention of deliver justice or to conclude a matter is to public
sentiment even though there are so many provisions regarding appeal. But such
practices will be big and too pressure on the mechanism of judiciary and the
judiciary will be more burdened with more pendency of cases and delayed
justice to all parties who are approaching thought court which may
consequently discover more burden and unrest about judicial procedures. So, to
resolve all such issues the statutes and law had already provides certain
provisions regarding the transfer of cases from one court to another court.

There are three provisions of transfer of petitions provided by law –

1. Section 25 of CPC, 1908.
2. Section 406 of CrPC, 1973.
3. Art. 139A of Constitution of India, 1950.
SECTION 406 CR. P. C 1973 – POWER OF SUPREME COURT
TO TRANSFER CASES AND APPEALS
Power of Supreme Court to transfer cases and appeals.1
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.

The Supreme Court is vested with the widest discretionary power to make any
such order to transfer any specific case or appeal or any matter lying pending
before one high court to another high court to meet up the end of justice and
satisfy the principle of fair justice. The application to transfer such case from
one High court to another high court would be moved by any person who is
under apprehension of any unfair action or he may not find proper justice for
him or Attorney General of India. The provision made under section 406 of Cr.
P. C majorly relies upon the discretion of the Supreme Court. The applicant is
not under any obligation to establish conclusively that in absence of this transfer
the interest of justice regarding him would fail. The applicant will have to
reasonably substantiate his contentions regarding the application. The Supreme
Court is not only vested with the authority to transfer files form one High court
to another High Court. The Supreme Court also has authority to the transfer any
case from one court to another court which is in subordination to the Supreme
Court. Any objection if arose by the court under which the matter is lying

1
Sec. 406 CrPC, 1973.
pending. Although the trail court may ensure the Supreme Court about
maintaining the principle of fair and equity, but the Supreme Court would take
all reasonable measure to transfer that case to some other court which may be
either to the court of same competence of may be court lower or higher
competence. Section 406 contemplates transfer of proceedings. It does not
clothe the court with the power to transfer investigation from one police station
to another, simply because the first information report or remand report is
forwarded to a court.2 The power shall be exercised if there is a reasonable
apprehension on the part of a party to the case that justice will not be done. A
petitioner is not required to demonstrate that justice will inevitably fail.3
Convenience of parties and witness may be a relevant factor to be considered
for transferring a case.4 It is always open to a party to bring to the notice of the
appropriate court if and when there is a good ground to support and
apprehension that he cannot have a fair trial.5 Where the local atmosphere is not
conductive to a fair and impartial trial, where a case is between persons
belonging to two different communities and there is a serious communal tension
in the locality as between the two communities.6 The applicant claimed that he
would not be able to engage a counsel in the court where the case was pending
against him. District Bar Association submitted the affidavit before the court
assuring that the defence counsel would be available from among the members
of the Bar Association. Therefore, the Supreme Court dismissed the prayer for
transfer.7 Transfer petition may be entertained to alleviate the hardship of all the
parties. Permission may also be granted to the accused for being present in the
court through his/her counsel.8 The Supreme Court cannot transfer a contempt
proceeding pending before the High Court.9 Section 406 of Criminal Procedure
code does not clothe the Supreme Court with the power to transfer investigation
from one police station to another simply because first information report is
forwarded to a court. The power is limited.10 The Supreme Court is given with
very wide discretionary power to transfer cases and appeals from one High
Court to another High Court or from Criminal Court subordinate to one High
Court. Whenever, it is expedient to do so, it can do for ends of justice.11 The

2
CODE OF CRIMINAL PROCEDURE by B.B. MITRA- Kamal Law House- 20th edition- 2003. Pg. 1617.
3
R.V.Kelkar‘s CRIMINAL PROCEDURE by K.N.Chandrasekharan Pillai- Eastern Book Company- 6th edition- 2014-
pg. 723.
4
Justice P.S.Narayana‘s Pleading & Practice- Asia Law House- 7 th edition- 2012. Pg. 199.
5
A.K.K. Nambiar v. Desraj, AIR 1973 SC 203.
6
0 G.X.Francis V. Banke Bihari Singh, AIR 1958 SC 309: 1958 CrLJ 569.
7
Vishwanath Gupta v. State of U.P., (2007) 11 SCC 640.
8
Kanta Ram v. Savitri Devi (2001) 10 SCC 32.
9
Sukdev v. Teja Singh AIR 1954 SC 186 : 1954 SCR 454 : 1954 CrLJ 460.
10
Gaur KD, Criminal law- Cases and Materials, 8th edition, Lexis Nexis, 2015. Pg. 39.
11
Paranjape Nv, Crime and Punishment, Trends & Reflections, Lexis Nexis, 2015- pg. 300.
Apex Court held that an order of transfer is not to be passed as a matter of
routine or merely because an interested party has expressed some apprehension
about proper conduct of the trial. The court said power has to be exercised
cautiously and in exceptional situations, where it becomes necessary to do so to
provide credibility to the trial and there has to be a real apprehension that there
would be miscarriage of justice.12
The Supreme Court can be moved under section 406 only on the application of
the Attorney-General of India, or of an interested party, and such an application
should always be made in the form of a motion. Except when the applicant is
the Attorney-General of India or the Advocate-General of a State, the motion
must be supported by an affidavit or affirmation. The normal practice of the
Supreme Court is to act on such affidavits, but if one party omits to make an
affidavit in reply, the affidavit of the other party, which remains uncontroverted,
can be acted upon.13 It is also provided that if such an application is dismissed,
and the Supreme Court is of the opinion that it was frivolous or vexatious, it
may order the applicant to pay to any person who had opposed the application,
such compensation not exceeding Rs. 1,000, as the Court may consider
appropriate in the circumstances of the case. It may be noted that the central
criterion for directing a transfer is not the hyper-sensitivity or relative
convenience of a party. Something more substantial more compelling, more
imperiling from the point of view of public justice is necessary for directing a
transfer.14 It was held in a case that it is impermissible for a High court to
transfer a case from one of its subordinate court to another court in other State.15
A case is transferred when there is a very reasonable apprehension on the part of
a party to a case that justice will not be done. A petitioner is not required to
demonstrate that Justice will inevitably fail.16 The Supreme Court has held that
where the Magistrate himself files an affidavit strongly opposing the transfer
sought from his Court, it is clearly expedient for the ends of justice to transfer
the case, without even considering the merits of the contentions of the Petitioner
asking for such transfer. This is so, because in such a case, all the essential
attributes of a fair and impartial trial are put in jeopardy.17 Likewise, it has been
held that a transfer application should .be allowed where the circumstances
brought on record show every likelihood of physical harm being caused to the

12
Usmangani Adambhai Vahora v. State of Gujarat & Anr. CRIMINAL APPEAL NOS. 1592-1593 of 2015
13
Hazara Singh, — A.I.R. 1905 S.C. 720.
14
Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204: 2000 SCC (Cri) 1048 : 2000 Cri LJ 3480.
15
9 Pal Singh v. CBI (2005) 12 SCC 329: (2006) I SCC (Cri) 570.
16
BATUK LAL‘S COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE 1973, 5th edition- Orient Publishing
Company- Volume 2- 2010. Pg. 2297.
17
Kaushalya Devi v. Mool Raj, – 1964 Cr. L.J. 233.
Petitioner.18 It is also to be noted that S. 406 contemplates transfer of
proceedings from one Court to another. It does not empower the Court to
transfer the investigations from one Police Station to another. If the accused is
asked to appear in a far-off Court during the investigatory stage, he can move
the Court for appropriate orders.19

THE GROUNDS ON WHICH THE CASES CAN BE TRANSFERRED

The following are the grounds on which a case could be transferred from one
court to another court –
1. To meet the ends of justice :- It is the utmost duty of the court to take all
such measures to meet up the ends of justice and to pronounce the
judgment which should also send a good message in the society that
justice was not only done it was done with an impact that it appears that
justice is done. The court is the most trusted and sacred institution. And
every person holds a very high relative position and respect for court and
its decisions. So, the courts have extra moral obligation to keep the spirit
of trust and confidence alive within this machinery. This ground to meet
the ends of justice have a vide connotations it could be easily understood
that this authority would have high degrees of discretionary powers.
Which could be used in accordance with the factual quantum to provide
justice to all the subject litigants. The factual matrix of every trail weather
civil or criminal proceedings is quite different so in order to ascertain a
pre-managed situation for dealing may not ensure a fair trial or may even
end up causing irreparable loss to the interest of the litigants. Therefore,
the court has been vested with such discretionary authority to determine
such question regarding transfer of court.
2. As per the inquiry report of any superior judicial officer such as any
Chief judicial magistrate or any sessions judge the trail must not be
conducted by a particular magistrate or any other officer such a report
shall also be deemed to be a valid ground for such transfer of a case from
one court to another.
3. The trail court deems it fit to be transferred from its purview or the
determination of the trail may involve such substantial question of law.
Determining substantial question of law far above its jurisdiction would
render the complete trail fruitless.

18
Sesamma Philip,—A.I.R. 1973 S.C. 875.
19
Ram Chander, — A.I.R. 1978 S.C. 475.
 4. The court have a limited jurisdiction over the subject matter of the dispute
in such limited or shared juridical issue the court trying the matter will
have a liberty to transfer the case to the court which have competent
jurisdiction to try that matter conclusively so that the complete trail could
not be failed because of lack of complete jurisdiction.
5. Mutual collision between the party and other judicial officer. The
possibility of corruption is no stranger to the judicial fraternity. in such
cases to avoid the failure of interest of the actual aggrieved party between
the litigants the court provides reasonable opportunity to the party which
may have such apprehension.
6. The judicial officer being engaged or involved in the litigation by some or
the other. In such scenario the litigant parties have complete freedom to
approach the authorities for avoiding any collision of interest when
capitalized through any characterized persons.
7. The judicial officer may be made as witness. If any judicial person has
been made as a witness to any trail this surfaces the end of the ability of
that person to conduct the trail. Such actions may append breach of
ordinary prudence of fair trail and may impeach the interest of justice.
8. When the court or any judicial authority is working in contravention to
the principles of natural justice. Any if such breach when reported to the
authority continues to happen the aggrieved party would be free to take
shelter for preferring transfer of case.
9. Any mutual disturbance or unethical relationship between the lawyer or
the judicial officer may also prefer an application of transfer of case from
one court to another.

POWER OF SUPREME COURT TO TRANSFER CASES

The solitary ground that safety of the complainant would be in jeopardy if the
case is not transferred is a nebulous ground for transferring the case and hence
transfer cannot be granted. Under Section 406 of the Code, the Supreme Court
will transfer a case if there is a reasonable apprehension on the part of a party to
a case that justice will not be done. The apprehension of not getting a fair and
impartial inquiry or trial is required to be reasonable and not imaginary, based
upon conjecture and surmises. 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 petitioner 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
larger interest of the society20. The Supreme Court has given it the widest
interpretation to also include a political opponent to be an interested party. 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). ―Free and fair trial is sine qua non of Article 21 of the
Constitution. It is trite law that justice should not only be done but it should be
seen to have been done. If the criminal trial is not free and fair and not free from
bias, judicial fairness and the criminal justice system would be at stake shaking
the confidence of the public in the system and woe would be the rule of law. It
is important to note that in such a case the question is not whether the petitioner
is actually biased but the question is whether the circumstances are such that
there is a reasonable apprehension in the mind of the petitioner.21 Once it is
brought to the notice of the court that transfer application has been moved, it
must stay the proceedings and wait for the decision on the transfer application.22
An application moved by the accused seeking time to move transfer application
if malafide and moved with intent to delay the disposal of the case should be
rejected.23
Since this is a discretionary power, it may be instructive to refer to the
following observations made in the matter reported as Maneka Sanjay Gandhi v.
Rani Jethmalani24, (V.R. Krishna Iyer, J. at Paras. 2 and 5): 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 imperiling, 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

20
Monica v. state of Rajasthan, AIR 2010 SC 103.
21
5 K. Anbazhagan vs. Superintendent of Police (2004) 3 SCC 767.
22
Lallu Prasad Vs. Lakshmi Narain, 2006 (5) ALJ (NOC) 1041 (All).
23
Anil Kumar Vs. State of UP, 2014 (86) ACC 805 (All).
24
(1979) 4 SCC 167.
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. A more
serious ground which disturbs us in more ways than one is the alleged absence
of congenial atmosphere for a fair and impartial trial. It is becoming a frequent
phenomenon in our country that court proceedings are being disturbed by rude
hoodlums and unruly crowds, jostling or cheering and disrupting the judicial
hearing with menaces, noises and worse. This tendency of toughs and street
roughs to violate the serenity of the court is obstructive of the course of justice
and must surely be stamped out. Likewise, the safety of the person of an
accused or complainant is an essential condition for participation in a trial and
where that is put in peril by commotion, tumult or threat on account of
pathological conditions prevalent in a particular venue, the request for a transfer
may not be dismissed summarily. It causes disquiet and concern to a court of
justice if a person seeking justice is unable to appear, present one’s case, bring
one‘s witnesses or adduce evidence. Indeed, it is the duty of the court to assure
propitious conditions which conduce to comparative tranquility at the trial.
Turbulent conditions putting the accused’s life in danger or creating chaos
inside the court hall may jettison public justice. If this vice is peculiar to a
particular place and is persistent the transfer of the case from that place may
become necessary. Likewise, if there is general consternation or atmosphere of
tension or raging masses of people in the entire region taking sides and
polluting the climate, vitiating the necessary neutrality to hold a detached
judicial trial, the situation may be said to have deteriorated to such an extent as
to warrant transfer.
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. However, 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.25 The Supreme Court held that the apprehension entertained by the
party must be a reasonable one and the case cannot be transferred on a mere
allegation that there is apprehension that justice will not be done.26 In Captain
Amarinder Singh v. Parkash Singh Badal and others27, while dealing with an
application for transfer petition preferred under Section 406 CrPC, a threeJudge
Bench has opined that for transfer of a criminal case, there must be a reasonable
apprehension on the part of the party to a case that justice will not be done. It
has also been observed therein that mere an allegation that there is an
apprehension that justice will not be done in a given case alone does not suffice.
It is also required on the part of the Court to see whether the apprehension
alleged is reasonable or not, for the apprehension must not only be entertained
but must appear to the Court to be a reasonable apprehension. In the said
context, the Court has held thus :- Assurance of a fair trial is the first imperative
of the dispensation of justice. The purpose of the criminal trial is to dispense
fair and impartial justice uninfluenced by extraneous considerations. When it is
shown that the public confidence in the fairness of a trial would be seriously
undermined, the aggrieved party can seek the transfer of a case within the State
under Section 407 and anywhere in the country under Section 406 CrPC.
However, the apprehension of not getting a fair and impartial inquiry or trial is
required to be reasonable and not imaginary. Free and fair trial is sine qua non
of Article 21 of the Constitution. If the criminal trial is not free and fair and if it
is biased, judicial fairness and the criminal justice system would be at stake,
shaking the confidence of the public in the system. The apprehension must
appear to the court to be a reasonable one.
In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand28, the Court,
repelling the submission that because some of the distantly related members
were in the midst of the Chief Minister, opined that from the said fact it cannot
be presumed that the Presiding Judge would conclude against the appellant.
From the said decision, we think it appropriate to reproduce the following
passage:-
“Independence of judiciary is the basic feature of the Constitution. It demands
that a Judge who presides over the trial, the Public Prosecutor who presents the
case on behalf of the State and the lawyer vis-à-vis amicus curiae who
represents the accused must work together in harmony in the public interest of
justice uninfluenced by the personality of the accused or those managing the

25
Abdul Nazar Madani Vs. State of T.N. {(2000) 6 SCC 204}.
26
Jayendra Saraswathy Swamigal (II) Vs. State of T.N. {(2005) 8 SCC 771}.
27
(2009) 6 SCC 260.
28
(2013) 8 SCC 593.
affairs of the State. They must ensure that their working does not lead to
creation of conflict between justice and jurisprudence. A person whether he is a
judicial officer or a Public Prosecutor or a lawyer defending the accused
should always uphold the dignity of their high office with a full sense of
responsibility and see that its value in no circumstance gets devalued. The
public interest demands that the trial should be conducted in a fair manner and
the administration of justice would be fair and independent.”
The apprehension of not getting a fair and impartial enquiry or trial is required
to be reasonable and not imaginary, based upon conjectures and surmises. No
universal or hard and fast rule can be prescribed for deciding a transfer petition,
which will always have to be decided on the facts of each case. Convenience of
a party may be one of the relevant considerations but cannot override all other
considerations such as the availability of witnesses exclusively at the original
place, making it virtually impossible to continue with the trial at the place of
transfer, and progress of which would naturally be impeded for that reason at
the transferred place of trial. The convenience of the parties does not mean the
convenience of the petitioner alone who approaches 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. It was noticed that early conclusion of the trial becomes
much more difficult involving more expenses for the prosecution by it having to
bear travelling expenses of official and non-official witnesses and all of which
ultimately causes the trial to linger on for years. In our view, at this stage, the
apprehensions voiced by the petitioner of possible harm to her at Delhi is too
nebulous a ground for transfer. On her own pleadings, the petitioner has been
travelling from Mumbai to Delhi since long for professional reasons.29 Supreme
Court will transfer a case from one State to another State only if there is a
reasonable apprehension on the part of a party to a case that justice will not be
done. Mere apprehension that the accused are influential may not be sufficient
to transfer the case. Moreover, extraordinary power of constitutional courts in
directing CBI to conduct investigation in a case must be exercised rarely in
exceptional circumstances, especially, when there is lack of confidence in
investigating agency or in national interest and for doing complete justice in the
matter.30
In Parminder Kaur vs. State of U.P.31, it was observed: The petitioner is a
person of means and it will not be difficult for her to attend the hearing of the

29
3 Mrudul M. Damle & Anr. vs. Central Bureau of Investigation, New Delhi, 2012 (5) SCC 706.
30
Sujatha Ravi Kiran v. State of Kerala, (2016) 7 SCC 597.
31
5 (2007) 15 SCC 307.
criminal cases pending in the Court of Chief Judicial Magistrate, Rampur. The
comparative inconvenience of the litigant parties are not the only criterion for
transferring the cases from one State to another State, but the Court has to
visualize the comparative inconvenience and hardships likely to be caused to
the witnesses besides the burden to be borne by the State Exchequer in making
payment of travelling and other expenses of the official and non-official
witnesses who will have to travel by train from Rampur to Delhi or Chandigarh,
as the case may be, for attending the court proceedings if the cases are ordered
to be transferred to transferee court.

Litigants cannot be permitted 'choice' of 'forum' and every attempt at "forum

shopping" must be crushed with a heavy hand :
No lawyer or litigant can be permitted to browbeat the Court or malign the
Presiding Officer with a view to get a favorable order. Judges shall not be able
to perform their duties freely and fairly if such activities were permitted and in
the result administration of justice would become a casualty and Rule of Law
would receive a setback. The Judges are obliged to decide cases impartially and
without any fear or favour. Lawyers and litigants cannot be allowed to terrorize
or intimidate Judges with a view to secure orders which they want. This is basic
and fundamental and no civilised system of administration of justice can permit
it. A litigant cannot be permitted 'choice' of the 'forum' and every attempt at
"forum shopping" must be crushed with a heavy hand. At the same time, it is of
utmost importance to remember that Judges must act as impartial referees and
decide cases objectively, uninfluenced by any personal bias or prejudice. A
Judge should not allow his judicial position to be compromised at any cost. This
is essential for maintaining the integrity of the institution and public confidence
in it. The credibility of this institution rests on the fairness and impartiality of
the Judges at all levels. It is the principle of highest importance, for the proper
administration of justice, that judicial powers must be exercised impartially and
within the bounds of law. It must always be remembered that justice must not
only be done but it must also be seen to be done.32
No objection or consent of opposite party not a ground for Transfer of a
case:
A change of court is not allowable merely because the other side too has no
objection for such change. Or else, it would mean that when both parties

32
M/s. Chetak Construction Ltd Vs. Om Prakash & Others, AIR 1998 SC 1855 (paras 19 & 20).
combined together they can avoid a court and get a court of their own choice.
Court is not disposed to give such an option to the parties.33
Transfer cannot be made to Inferior Court
It must be born in mind that when a case is transferred to a court which has
jurisdiction either equal or superior to the one before which the case was
pending. It cannot be transferred to a court which is inferior in jurisdiction.34
Transferee Court not to proceed de novo:
Where original suit was transferred to the court having pecuniary jurisdiction, it
has been held by the Hon'ble Supreme Court that it was not necessary for the
transferee court to proceed de novo. Transferee court would be fully competent
to proceed from the stage till which proceedings in the earlier court were held.
Refusal of transfer of Ghaziabad GPF scam case involving judicial officers
to Delhi:
Turning down the transfer application of the CBI under section 406 CrPC, the
supreme court has held that power of transferring case u/s 406 CRPC should be
sparingly and with great circumspection exercised and merely because the
accused persons in Ghaziabad PF scam are judicial officers of the state of UP, it
cannot be a ground for transferring the case from Ghaziabad to Delhi where
subordinate judiciary is already heavily burdened.35 "When there is
apprehension in the mind of any party that he will not get justice from a
particular presiding officer of the court and the presiding officer is in the
knowledge of the transfer application having been moved, he must not decide
the case and should wait for orders on the transfer application. It will be in the
interest of justice to transfer the case to other court."36

33
Mahabir Prasad Singh Vs. M/s. Jacks Aviation Pvt. Ltd., AIR 1999 SC 287.
34
The CODE OF CRIMINAL PROCEDURE by BATUK LAL- Central Law Agency- 1st edition – 2008- pg. 552.
35
9 Nahar Singh Yadav Vs. union of India, 2011 CrLJ 997 (SC).
36
Ram Narayana Vs. Rakesh Tandon, 2006 (63) ALR 47 (All).
TRANSFER OF CASES UNDER CONSTITUTION OF INDIA
Transfer of certain cases
1. Where cases involving the same or substantially the same questions of
law are pending before the Supreme Court and one or more High Courts
or before two or more High Courts and the Supreme Court is satisfied on
its own motion or an application made by the Attorney General of India
or by a party to any such case that such questions are substantial
questions of general importance, the Supreme Court may withdraw the
case or cases pending before the High Court or the High Courts and
dispose of all the cases itself: Provided that the Supreme Court may after
determining the said questions of law return any case so withdrawn
together with a copy of its judgment on such questions to the High Court
from which the case has been withdrawn, and the High Court shall on
receipt thereof, proceed to dispose of the case in conformity with such
judgment
2. The Supreme Court may, if it deems it expedient so to do for the ends of
justice, transfer any case, appeal or other proceedings pending before any
High Court to any other High Court

The Constitution Bench of the Supreme Court has held that Supreme Court can,
by invoking Article 32, 136 and 142 of the Constitution is empowered to
transfer a case from a Court in the State of Jammu and Kashmir to a Court
outside the State or vice versa. And the court observed that Access to justice is
guaranteed to citizens by Article 14 and Article 21 of the Constitution of India.
―There is no prohibition against use of power under Article 142 to direct
transfer of cases from a Court in the State of Jammu and Kashmir to a Court
outside the State or vice versa. All that can be said is that there is no enabling
provision because of the reasons which we have indicated earlier. The absence
of an enabling provision, however, cannot be construed as a prohibition against
transfer of cases to or from the State of Jammu and Kashmir. At any rate, a
prohibition simpliciter is not enough. What is equally important is to see
whether there is any fundamental principle of public policy underlying any such
prohibition. No such prohibition or any public policy can be seen in the cases at
hand much less a public policy based on any fundamental principle. The
extraordinary power available to this Court under Article 142 of the
Constitution can, therefore, be usefully invoked in a situation where the Court is
satisfied that denial of an order of transfer from or to the Court in the State of
Jammu and Kashmir will deny the citizen his/her right of access to justice. The
provisions of Articles 32, 136 and 142 are, therefore, wide enough to empower
this Court to direct such transfer in appropriate situations, no matter Central
Code of Civil and Criminal Procedures do not extend to the State nor do the
State Codes of Civil and Criminal Procedure contain any provision that
empowers this court to transfer cases.37 Bombay High Court in Vibhuti
Amarnath Agrawal v State of Maharashtra had held that for admission to
law colleges in Maharashtra, consent/approval from Bar Council of India (BCI)
was not required and that the admission process must be completed within the
time schedule as fixed by the concerned University, the Supreme Court has
declined to transfer the case to itself under Article 139A of the Constitution.
Constitution of India - Arts. 139-A, 136 and 226 - Transfer of writ
proceedings to Supreme Court:
In this case transfer petitions were dismissed on the ground that issue involved
were pending consideration in a civil appeal in Supreme Court. Decision of
Supreme Court can be brought to notice of High Court once civil appeal
decided by Supreme Court and parties in meantime can request High Court to
defer proceedings in pending writ petitions.38
Constitution of India - Arts. 226, 136 and 32 - Transfer of investigation:
Commencement of trial and examination of some witnesses, cannot be an
absolute impediment for exercising power of constitutional courts to direct
further investigation or de novo or fresh investigation or reinvestigation by
some other investigating agency. Such power is meant to ensure fair and just
investigation.39

37
ANITA KUSHWAHA v. PUSHAP SUDAN TRANSFER PETITION (C) NO. 1343 OF 2008.
38
Commr. of Service Tax (Appeals 1) v. Sri Selvaganapathy & Co., (2018) 4 SCC 578.
39
Dharam Pal v. State of Haryana, (2016) 4 SCC 160.
TRANSFER OF CASES TO SUPREME COURT UNDER CPC.
Power of Supreme court to transfer suits, etc40
(1) On the application of a party, and after notice to the parties, and after
hearing such of them as desire to be heard, the Supreme Court may, at
any stage, if satisfied that an Order under this section is expedient for
the ends of justice, direct that any suit, appeal or other proceeding be
transferred from a High Court or other Civil Court in one State to a
High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion

which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is

transferred shall, subject to any special directions in the Order of
transfer, either retry it or proceed from the stage at which it was
transferred to it.

(4) In dismissing any application under this section, 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 two
thousand rupees, as it considers appropriate in the circumstances of
the case.

(5) The law applicable to any suit, appeal or other proceeding

transferred under this section shall be the law which the Court in
which the suit, appeal or other proceeding was originally instituted
ought to have applied to such suit, appeal or proceeding.

Section 25 gives the Supreme Court the power to transfer a case from any Court
in the country to any other Court in any state whether or not the Court has
jurisdiction to try the suit. This power is however exercised very sparingly
where it is expedient for the ends of justice. The section mandates that every
application under it is supported by an affidavit and it may be dismissed with
cost if found to be vexatious and frivolous. The law, which governs the suit that
has been transferred to another Court, is the law that the Court where the suit

40
Sec 25, cpc,1908.
was initially instituted would have applied. The exercise of discretion under this
section cannot be for reasons like balance of convenience, it can only be
exercised when it is necessary for justice or else there would be denial of
justice. What ‘justice’ means is very subjective and no clear cut definition of it
is possible. It is to be seen on a case-to-case basis.
In civil procedure, the jurisdiction of civil court is at the root of any suit. It is
the primary criterion on the basis of which the civil court can adjudicate upon a
dispute. Any decree given by a court which is lacking jurisdiction in a nullity
and the same may be impeached at any stage.
Civil Procedure Code, 1908 (the CPC) has not defined anywhere the jurisdiction
of Civil Courts. Rather, Section 15 specifies that “Every suit shall be instituted
in the Court of the lowest grade competent to try it”. It only specifies that
amongst the competent courts, the suit must be instituted at the court of the
lowest grade Given this general principle of the CPC, there are some cases
where multiple civil courts may have jurisdiction to entertain and adjudicate
upon suit. Section 16 and 19 confers jurisdiction to multiple courts based on the
following criteria:
• The place where the cause of action has arisen;
• The place where the defendant resides, or carries on business or works for
gain.
• Again, if there are multiple defendants having different place of
residences, or work places, then with the leave of Court, suit may be
instituted at any of such places.
In such case, the choice is available to the plaintiff to file a suit as per his
choice. As a general rule a plaintiff as arbiter litis or dominus litis has a right to
choose his own forum where a suit can be filed in more than one court. This
right of the plaintiff cannot be taken away normally.41 However, in some
circumstances this right is controlled by the power vested in superior courts to
transfer a case pending in one inferior court to another or to recall the case to
itself for hearing and disposal. Sections 22 to 25 enact the law as regards
transfer and withdrawal of suits, appeals and other proceedings from one court
to another. Sections 22 and 23 enable a defendant to apply for transfer any suit
while sections 24 and 25 empower certain courts to transfer any suit, appeal or
other proceedings either on application made by any party or by the court suo
motu. The provisions of Sections 22-25 are exhaustive.42

41
Indian Overseas Bank v Chemical Construction Corp,(1979) 4 S.C.C 358.
42
Durgesh Sharma v Jayshree, (2008) 9 S.C.C 648.
OBJECT AND NATURE OF PROVISIONS FOR THE TRASFER OF
SUIT
The object of every procedural law is to facilitate justice. A fair and an impartial
trial is sine qua non and an essential requirement of dispensation of justice.
Justice can only be achieved if the court deals with both the parties present
before it equally, impartially and even - handedly, a court. Hence, though a
plaintiff has the right to choose his own forum with a view to administer justice
fairly, impartially, and even- handedly, a court may transfer a case from one
court to some other court.43
Section 22 allows the defendant to make an application for transfer of a suit,
whereas section 23 indicates the court to which such an application can be
made. Section 24 embodies general power of transfer of any suit, appeal or
other proceeding at any stage either on an application of any party or by a court
of its own motion. In Durgesh Sharma v Jayshree44 it was held that this power
does not authorise a High Court to transfer any suit, appeal or other proceedings
from a court subordinate to that High Court to a court not subordinate to that
High Court. It was further opined by the judges that Section 25 confers very
wide, extensive and plenary powers on the Supreme Court to transfer any suit,
appeal or other proceedings from one High Court to another High Court or from
one civil court in one State to other civil court in another state.
In Rajagopala Pandarathar & Ors. V. Tirupathia Pillai & Anr45, it was held that
Section 24 provides for power for transfer of a case from one court to another. It
provides for transfer of suit, appeal or other proceedings. Other proceedings
include the execution proceedings. Transfer of the proceedings by the High
Court before itself on the ground that a party is abusing the process of the Court
or otherwise resorting to the process that other party may not succeed, stands
fully fortified by the judgment of the Hon’ble Supreme Court in Abdul Rahman
V. Prasony Bai & Anr.46 In Nahar Industrial Enterprises Ltd. v. Hong Kong and
Shanghai Banking Corporation47, the apex court held: “Only civil suits are
subject matter of inter State transfer from one civil court to another civil court.
Sub-section (5) of section 24 of CPC provides that a suit or proceeding may be
transferred from a Court which has no jurisdiction to try it. The power to
transfer one case from one court to another or from one tribunal to another is to

43
(1992) 2 S.C.C 676.
44
(2008) 9 S.C.C 648.
45
A.I.R 1926 Mad. 421.
46
A.I.R 2003 S.C 718.
47
(2009) 8 S.C.C 646.
be exercised if exceptional situation arises and not otherwise. Rules of
procedures are intended to provide justice and not to defeat it.”
It was held in N.K. Nair & Anr. V. Kavanugalaanattu Radhika48 that Section 25
empowers the Supreme Court to transfer the case from a competent Court in
one State to the Court of another State. The transfer should not be made when
the proceedings in a case has reached the final stage or are likely to be
concluded.
GROUNDS
In the context of power of Supreme Court with regard to transfer of cases under
Section 25 C.P.C. in Subramaniam Swamy Vs. Ramakrishna Hegde49, , the
Court said: "The question of expediency would depend on the facts and
circumstances of each case but the paramount consideration for the exercise of
power must be to meet the ends of justice. It is true that if more than one court
has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a
right to choose the Court and the defendant cannot demand that the suit be tried
in any particular court convenient to him. The mere convenience of the parties
or any one of them may not be enough for the exercise of power but it must also
be shown that trial in the chosen forum will result in denial of justice. Cases are
not unknown where a party seeking justice chooses a forum most inconvenient
to the adversary with a view to depriving that party of a fair trial. The
Parliament has therefore, invested this Court with the discretion to transfer the
case from one Court to another if that is considered expedient to meet the ends
of justice. Words of wide amplitude- for the ends of justice-have been advisedly
used to leave the matter to the discretion of the apex court as it is not possible to
conceive of all situations requiring or justifying the exercise of power. But the
paramount consideration must be to see that justice according to law is done; if
for achieving that objective the transfer of the case is imperative, there should
be no hesitation to transfer the case even if it is likely to cause some
inconvenience to the plaintiff.
In Indian Overseas Bank v Chemical Construction Co. it was held that the mere
balance of convenience in favour of proceedings in another court albeit a
material consideration, may not always be a true criterion justifying the transfer.
The power of transfer of a civil proceeding to another Court conferred under the
new Section 25 C.P.C. on the Supreme Court is far wider and so is the
amplitude of the expression "expedient in the interests of justice" which
furnishes a general guideline for the exercise of the power. The paramount
48
(2005) 13 S.C.C 439.
49
(1990) 1 S.C.C 4.
consideration is the interest of justice and when the ends of justice demand
transfer of a case, the court should not hesitate to act.
Sometimes transfer of suit has also been justified on the ground of convenience
to the parties or witnesses etc. but in such cases the paramount factor which
should be considered is the convenience of both parties. An exception, however,
to some extent, has been made in matrimonial cases where convenience of wife
has been given a dominating factor than husband, particularly when she has
none to escort her or of quite young age or where she has financial constrained
etc.In Anjali Ashok Sadhwani v Ashok Kishinchand Sadhwani,50 and Fatema vs.
Jafri Syed Husain v Syed Parvez Jafferi51 the apex court held that the in the
matrimonial cases the convenience of wife and the fact that there was no one in
her family to escort her to take long journey was held to be the good ground for
the transfer of the case.
A ground for transfer of a civil suit from one court to another is that where two
suits raising common questions of facts and law between parties, common to
both the suits are pending in two different Courts, it is generally in the interests
of justice to transfer one of these suits to the other forum to be tried by the same
court with consequent avoidance of multiplicity in the trial of the same issues
and the risk of conflicting decisions thereon.
In Ranbir Yadav v State of Bihar52 it was held that irrespective of the Code, a
High Court has power to transfer a suit, appeal or other proceedings on the
administrative grounds.
In Kali Charan v Sudha Rani53 various cases were lying in the different courts
and the Supreme Court, therefore held it would be in the interest of justice to
transfer the case.

POWER AND DUTY OF COURT

The power to transfer a case is in the discretion of the court. This discretion,
like every other discretion, has to be exercised judicially, keeping in mind that
the law confers a right on the person initiating the proceedings to choose one of
the several forums available to him and as arbiter litis, he has the right to select
his own forum. Normally, such a right should not be curtailed. But it cannot be
said the plaintiff making wrong choice of forum is immune and his choice

50
, A.I.R 2009 S.C 1374.
51
A.I.R 2009 S.C 1773.
52
(1995) 4 S.C.C 392.
53
(2011) 15 SCC 199.
cannot be questioned. A court would be justified in inquiring into the
circumstances to ascertain whether the right was exercised by the plaintiff mala
fide or for some ulterior motive or in abuse of his position as dominus litus.
Exercise of discretion being dependent on facts and circumstances of each case,
precedents would not be of much assistance.
The power of transfer must be exercised with extreme caution and
circumspection and in the interests of justice. The court while deciding the
question must bear in mind two conflicting interests; (i) as a dominus litis the
right of the plaintiff to choose his own forum (ii) the power and duty of the
court to assure fair trial and proper dispensation of justice.
While dealing with an application or for prayer of transfer, the court should not
enter into merits of the matter as it may affect the final outcome of the
proceedings to one or the other side. At the same time, however, an order of
transfer must reflect application of mind by the court and circumstances which
weighed in taking the action. Power of transfer cannot be exercised ipse dixit.

ILLUSTRATIVE CASES
TRANSFER ALLOWED
In Union Of India & Anr v Shiromani Gurdwara Prabandhak54 in view of the
nature of allegations regarding some of the respondents who have been added
there were was likelihood of strong feeling to be roused in some section of
community. In such an atmosphere to meet the ends of justice it was considered
desirable to have the case transferred to a calmer and quieter atmosphere. The
suit was also considered unusual and sensitive and. therefore, the Supreme
Court transferred the case outside the State of Punjab to meet the ends of
justice. In this case it was also held that if the transfer prevents the abuse of
power of court it should be allowed.
In the case of Jagatguru Shankracharya v Ramji Tripathi55 the reasonable
apprehension in the mind of the litigant the he would not get justice in the court
in which the suit was pending held to be valid ground for the transfer of suit. In
Indian Overseas Bank v Chemical Construction Co.56 the ground for transfer of
a civil suit from one court to another is that where two suits raising common
questions of facts and law between parties, common to both the suits are
pending in two different courts, it is generally in the interests of justice to
54
(1986) 3 S.C.C 600.
55
AIR 1979 M.P 50.
56
(1979) 4 S.C.C 358.
transfer one of these suits to the other forum to be tried by the same court with
consequent avoidance of multiplicity in the trial of the same issues and the risk
of conflicting decisions thereon. In Arvee Industries v Ratan Lal57 it was held
that where the balance of convenience requires e.g. where the property is
situated or their witnesses require, was held to be valid ground for transfer. The
fact that considerable section of the public is interested in the litigation was held
to be the valid ground for transfer.

TRANSFER NOT ALLOWED

In Subramaniam Swami v Ramkrishna Hegde58 it was held that the mere fact
the opposite party is a man of influence in the locality cannot be held as the
valid ground for transfer. In Manohar Lal Chopra v Seth Harilal59 it was held
that the mere fact that the court is situated at the long distance from the
residence of the applicant cannot be the valid ground for transfer of the case.
The Delhi High Court in the case of Mula Naramma v Mula Rengamma60 held
that fact that judge has decided the same point in a previous case cannot be
made a ground for the transfer of suit.in this case it was further held that
prejudice of a judge against a party’s pleader not likely to affect the party
cannot be made ground for the transfer of suit. In Subramaniam Swamy v
Ramkrishna Hegde61 it was held that the mere convenience of the parties or any
one of them may not be enough for the exercise of power by the court to
transfer cases. Allegation of apprehension against fair trial without furnishing
particulars was not held to be valid ground for transfer by the Supreme Court.62

57
(1977) 4 S.C.C 363.
58
(1990) 1 S.C.C 4.
59
AIR 1962 S.C 527.
60
,AIR 1976 Del 184.
61
(1990) 1 S.C.C 4.
62
Maneka Sanjay Gandhi v Rani Jethmalani,(1979) 4 S.C.C 167.
CONCLUSION
Power of transfer must be exercised with due care, caution and circumspection
and in the interests of justice .The court while deciding the question must bear
in mind two conflicting interests (i) as a dominus litis the right of the plaintiff to
choose his own forum and (ii) the power and duty of the court to assure a fair
trial and proper dispensation of justice of the justice .the paramount
consideration would be the requirement of the justice and if the ends of justice
demand transfer of a case ,the court should not hesitate to act. At the same time,
mere inconvenience of the party or bare and vague allegations by an interested
party about insecurity or even a threat to his life are not sufficient to transfer a
case want to territorial jurisdiction of the court to which the case is transferred
though a relevant factor is not conclusive and will not be an impediment to the
power of the court ordering the transfer .although discretionary power of
transfer cannot be imprisoned within a straitjacket of any cast iron formula
unanimously applicable to all situations ,it cannot be gainsaid that the power to
transfer a case must be exercised with due care and caution.
BIBLIOGRAPHY
PRIMARY SOURCES
STATUTES
• Indian Penal Code, 1860.
• Code of Civil Procedure, 1908.
• Code of Criminal Procedure, 1973.
• Constitution of India, 1950.
BOOKS
• R.V. Kelkar, Code of Criminal Procedure, 7th edn., Eastern Book
Company.
• The Code of Criminal Procedure by Batuk Lal - Central Law Agency- 1st
edition – 2008.

SECONDARY SOURCES
ARTICLES
• “Transfer of criminal cases to Supreme court”, thehindu.com on 13 may
2016.
• legalserviceindia.com.