Jan 10, 2018
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Powers of Supreme court and High court to transfer cases and appeals

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Powers of Supreme court and High court to transfer cases and appeals under Code of Criminal Procedure, 1973

1. Supreme Court :

Supreme Court of India, Official site, Retrieved on 27th December, 2017

The Supreme Court has original, appellate and advisory jurisdiction. It treated as highest and also supreme court in India. The original jurisdiction covers any dispute between the Government of India and one or more States or between two or more States. Dispute may involve question of law or question of fact on which legal right depends. In addition, Article 32 of the Constitution gives powers for original jurisdiction for enforcing Fundamental rights.

Power of Supreme Court to transfer cases and appeals (Section 406)

  • The Supreme court may direct for the purpose of justice, any case from one High court to another High court. It can also direct to transfer the case from one a criminal court to High court or also another criminal court.
  • The Supreme Court may transfer cases under this section only on the application of the Attorney-General of India. Every such application shall made by motion. Except when the Attorney -General of India or the Advocate-General of India applies, such application should support by affidavit or affirmation.
  •  The Supreme Court may order the applicant to pay compensation to any person who has opposed the application. The compensation should not exceed one thousand rupees or as court considers appropriate in certain cases. If the application was frivolous or vexatious.

2. High Court

High Courts are second highest and important court in India. It has original and also appellate jurisdiction. High courts formed under Article 141 of the Constitution of India. The Supreme Court of India governs order and also judgments of High court. The Supreme Court of India is the highest level of courts and also responsible for guiding the High Courts.The jurisdiction of these courts extend to the state, group of states or Union Territory.

The High Court of Bombay, which is the chartered High Court and one of the oldest High Courts in the Country. It has Appellate Jurisdiction over the State of Maharashtra, Goa, Daman & Diu and Dadra & Nagar Haveli. In addition to the Principal Seat at Bombay, it has benches at Aurangabad, Nagpur, Panaji(Goa).

High Court of Bombay, Official site, Retrieved on 27th December, 2017

High court has following powers to :

  1.  govern the jurisdiction of lower courts.
  2. issue directions, orders or writs.
  3. control subordinate courts.
  4. withdraw pending cases from subordinate court and dispose of all such cases itself.
  5. review and revise the judgments of subordinate courts.

High Courts entertain the cases related to civil or criminal. It can try cases of  lower courts, if proved incapable of exercising their power as per authorization extended by law.

Power of High Court to transfer cases and appeals (Section 407)

1. Whenever it appears to the High Court that:

  • a fair and impartial inquiry or trial cannot tried by any Criminal Court subordinate thereto, or
  • some question of law arises out of unusual difficulty; or
  • an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or  for the purpose of justice, it may order that :
    1. Court trying or inquiring, not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
    2. any particular case, or appeal, transferred from a criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
    3. any particular case committed for trial of to a Court of Session; or
    4. particular case or appeal transferred to and tried before itself.

2. The High Court may also act under this section either on the report of the lower Court. It can also act on the application of a party interested, or on its own initiative. Provided that no application shall lie for transferring a case from one criminal Court to another criminal Court in the same sessions division. Unless an application for such transfer has made to the Sessions Judge and rejected by him.

3. Every application shall made by motion. Except when the Advocate-General of the State applies, such application should support by affidavit or affirmation.

4. When the accused person forwards the application, the High Court may direct him to execute a bond, with or without sureties. It can also direct for the payment of any compensation which the High Court may award.

5. Every accused person along with the application in writing attach copy of the grounds on which application is made. It  shall give it to the public prosecutor. No order shall made on the merits of the application. Unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

6. Where the application made for the transfer of a case of appeal from any subordinate Court. The High Court may, in the interest of justice, order the proceeding of the subordinate court to held on stay. Provided that such stay shall not affect the subordinate Court’s power of remand under section 309.

7. Where an application for an order under Sub-Section (1)  dismissed, the High Court may,  order the applicant to pay compensation to any person who has opposed the application. The compensation should not exceed one thousand rupees or as court considers appropriate in certain cases. If the application was frivolous or also vexatious.

8. When the High Court orders under Sub-Section (1) that a case be transferred from any Court for trial before itself, it shall also observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

9. Nothing in this section shall be deemed to affect any order of Government under section 197.

 

 

 

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