Criminal procedure | Transfer of cases

Section 406 CrPC - Supreme Court Power to Transfer Criminal Cases and Appeals

Section 406 of the Code of Criminal Procedure, 1973 authorised the Supreme Court to transfer specified criminal cases and appeals between High Courts or between criminal courts under different High Courts when necessary for the ends of justice. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 446.

Section 406 CrPC - Original statutory provision

406. Power of Supreme Court to transfer cases and appeals.

Meaning and scope of Section 406 CrPC

The provision addresses transfer of a criminal case or appeal across the territorial jurisdictions of different High Courts. The Supreme Court may direct a transfer if it is satisfied that doing so is expedient for the ends of justice. The provision does not establish an automatic entitlement to select a preferred court.

Section 406(1) - Courts between which a transfer is possible

• From one High Court to another High Court.
• From a criminal court subordinate to one High Court to a criminal court of equal or superior jurisdiction subordinate to another High Court.

A transfer within the jurisdiction of the same High Court is ordinarily considered under the separate High Court transfer provision, formerly Section 407 CrPC and now Section 447 BNSS.

Section 406(2) - Who may apply and how

The Supreme Court may exercise the statutory power on an application by the Attorney-General of India or a party interested. The application is made by motion. Except where the applicant is the Attorney-General of India or the Advocate-General of a State, it must be supported by an affidavit or affirmation. Filing and procedural requirements are also governed by applicable Supreme Court Rules and practice directions.

Section 406(3) - Frivolous or vexatious applications

Under the former CrPC provision, where an application was dismissed as frivolous or vexatious, the Supreme Court could award compensation to a person who opposed it, subject to a ceiling of Rs. 1,000. Under Section 446(3) BNSS, that specific statutory monetary ceiling is removed; the Court may award such sum as it considers appropriate in the circumstances.

Section 446 BNSS - Corresponding current provision

446. Power of Supreme Court to transfer cases and appeals. Chapter XXXIII of the BNSS concerns transfer of criminal cases. Subsections (1) and (2) retain the essential transfer power and application procedure of Section 406 CrPC. The principal textual change relevant here is in subsection (3).

When may the Supreme Court order a transfer?

The controlling statutory test is whether transfer is expedient for the ends of justice. Depending on the evidence, relevant considerations may include a substantial and reasonable apprehension that a fair trial cannot take place, serious threats to participants, or circumstances affecting the proper administration of justice. Mere inconvenience, unsupported allegations or preference for another forum will not by themselves establish the statutory test.

Practical steps in a transfer application

1. Identify the pending case or appeal, its present court and the proposed transferee court.
2. Set out specific facts explaining why transfer is required for the ends of justice.
3. Prepare the application in accordance with applicable Supreme Court Rules, with supporting affidavit or affirmation where required.
4. Disclose relevant proceedings and serve the necessary parties as required by the Court's procedure.
5. Comply with any notice, interim directions and final transfer order made by the Supreme Court.

CrPC repeal and pending proceedings

Section 531 BNSS repeals the Code of Criminal Procedure, 1973, while preserving specified pending proceedings and other matters under its savings provisions. The applicable procedural framework for a particular matter depends on the nature and status of the proceeding and the relevant saving clause. A transfer application concerning an older case should therefore be assessed against Section 531 rather than assuming that every proceeding automatically moves to the BNSS.

Frequently asked questions

What is Section 406 CrPC?

It is the former statutory provision authorising the Supreme Court to transfer criminal cases and appeals between High Courts or between qualifying criminal courts under different High Courts when required for the ends of justice.

Which BNSS section corresponds to Section 406 CrPC?

Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Can the Supreme Court transfer a criminal case to another state?

Yes, where the proposed transfer falls within the courts described in the provision and the Supreme Court considers it expedient for the ends of justice.

Is compensation limited to Rs. 1,000 under the BNSS?

No. Section 446(3) BNSS does not retain the former Rs. 1,000 statutory ceiling, although compensation remains a matter for the Court's discretion when the dismissed application is considered frivolous or vexatious.

Official statutory references

• India Code - Bharatiya Nagarik Suraksha Sanhita, 2023
• National Crime Records Bureau - BNSS chapter-wise statutory text
• Bureau of Police Research and Development - BNSS reference PDF

Legal information is provided for general reference. Consult the current legislation, procedural rules and applicable judicial orders for a specific case.