Section 408 CrPC and Section 448 BNSS: Power of Sessions Judge to Transfer Criminal Cases
A Sessions Judge may transfer a criminal case between criminal courts within the same sessions division when the transfer is expedient for the ends of justice. The present corresponding provision is Section 448 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); the earlier provision was Section 408 of the Code of Criminal Procedure, 1973 (CrPC).
What does Section 448 BNSS provide?
Section 448(1): Transfer within the sessions division
When it appears to the Sessions Judge that transfer is expedient for the ends of justice, the judge may order a particular case transferred from one criminal court to another criminal court within that sessions division. This is not a general power to transfer a case to a court in another sessions division or another State.
Section 448(2): How the power may be exercised
The Sessions Judge may act on a report from a lower court, on an application by an interested party, or on the judge's own initiative (suo motu).
Section 448(3): Applicable safeguards
Section 448(3) incorporates subsections (3), (4), (5), (6), (7) and (9) of Section 447 BNSS, with a special compensation ceiling of Rs. 10,000 for frivolous or vexatious transfer applications before the Sessions Judge.
When can a criminal case be transferred?
The statutory test is whether transfer is expedient for the ends of justice. Depending on the facts, relevant grounds may include a substantiated apprehension that a fair hearing will be compromised, serious practical obstacles to conducting proceedings, or other circumstances materially affecting the administration of justice.
Transfer is discretionary, not automatic. A mere preference for another court, inconvenience without supporting circumstances, or an unsupported allegation of bias does not itself establish entitlement to transfer. The application should explain why the particular facts justify intervention.
How to apply for transfer before the Sessions Judge
- Identify jurisdiction: Confirm that both the court from which transfer is sought and the proposed receiving court are within the relevant sessions division.
- Prepare a transfer application: Identify the pending case, the courts concerned, the relief requested and the specific factual grounds.
- Support the application: The motion ordinarily requires an affidavit or affirmation, subject to the statutory exception applicable to the Advocate-General.
- Notice to the Public Prosecutor: An accused applicant must give written notice and a copy of the grounds. At least 24 hours must elapse between notice and the hearing on merits, as provided by the incorporated provision.
- Request interim relief where necessary: The Sessions Judge may stay subordinate-court proceedings pending the transfer application if the interests of justice require it. Such a stay does not displace the court's statutory remand powers.
- Attend the hearing: The court considers the grounds, objections and interests of justice before deciding whether to transfer the case.
The court may require an accused applicant to execute a bond, with or without sureties, concerning compensation that may be awarded. A frivolous or vexatious application can result in a compensation order within the statutory ceiling.
Section 408 CrPC and Section 448 BNSS: Key provisions
| Issue | Earlier CrPC | Current BNSS |
|---|---|---|
| Sessions Judge transfer power | Section 408 | Section 448 |
| High Court transfer safeguards incorporated | Section 407(3), (4), (5), (6), (7), (9) | Section 447(3), (4), (5), (6), (7), (9) |
| Territorial scope | Within the same sessions division | Within the same sessions division |
| Frivolous or vexatious application: compensation ceiling | Rs. 250 | Rs. 10,000 |
| Other related powers | Sections 406, 407, 409 | Sections 446, 447, 449 |
Section 408 CrPC: Earlier legal position
Under Section 408(1) CrPC, the Sessions Judge could transfer a particular criminal case between criminal courts in the same sessions division where expedient for the ends of justice. Subsection (2) allowed action on a lower-court report, an interested party's application or the judge's own initiative. Subsection (3) applied specified procedural provisions of Section 407 CrPC, but substituted a compensation ceiling of Rs. 250 for transfer applications before the Sessions Judge.
For matters governed by the savings provisions, the earlier CrPC wording remains important and should not be replaced mechanically with the BNSS compensation limit.
Note on the Kerala state-amendment reference
The earlier page reproduced a note citing Kerala Act 5 of 1957, section 3, and substitutions involving the expressions "any other Magistrate" and "Magistrate of the first class." That enactment predates the Code of Criminal Procedure, 1973, and the quoted expressions do not appear in the central text of Section 408 CrPC reproduced above. Accordingly, this historical note should not be treated as an operative amendment to Section 408 CrPC or Section 448 BNSS without verification against the relevant State enactment and its current applicability.
Frequently asked questions
Can a Sessions Judge transfer a criminal case to another district?
Section 448 BNSS is confined to transfers between criminal courts within the Sessions Judge's sessions division. A transfer beyond that division may require resort to the competent High Court or Supreme Court under the applicable statutory provisions.
Can the Sessions Judge transfer a criminal appeal under Section 448?
Although the statutory heading mentions cases and appeals, subsection (1) expressly authorises transfer of a "particular case." Questions involving the transfer or withdrawal of appeals should be examined with the wording of Sections 447 and 449 BNSS and the relevant judicial interpretation.
Does filing a transfer application automatically stop the trial?
No. A stay requires a specific order. Filing the application alone does not automatically stay proceedings.
What is the penalty for an unsuccessful transfer application?
Dismissal alone does not trigger compensation. If the court considers the application frivolous or vexatious, it may award compensation under the applicable provision, subject to the prescribed ceiling.
Official legal references
- Bureau of Police Research and Development - BNSS, 2023 (PDF)
- BPR&D - New Criminal Laws and official materials
- National Crime Records Bureau - CrPC and BNSS corresponding sections
- India Code - Central Acts and statutory texts
Updated: 18 October 2026. This article provides general legal information, not advice for a particular proceeding. Check official notifications, applicable State modifications and current judicial decisions before filing.