CrPC Section 407 — Power of High Court to transfer cases and appeals

Summary

Sub-section (1) allows the High Court to make transfer or trial orders when it appears that a fair and impartial inquiry or trial cannot be held in a subordinate Criminal Court; a question of law of unusual difficulty is likely to arise; a provision of the Code requires an order under this section; the order would tend to the general convenience of the parties or witnesses; or the order is expedient for the ends of justice. It may order: (i) an offence to be inquired into or tried by a Court that does not meet the qualifications in sections 177 to 185 but is otherwise competent; (ii) a particular case or appeal, or a class of cases or appeals, to be transferred from a subordinate Criminal Court to another subordinate Criminal Court of equal or higher jurisdiction; (iii) a particular case to be committed for trial to a Court of Session; or (iv) a particular case or appeal to be transferred to and tried before the High Court itself.

Sub-section (2) says the High Court may act on a report from the lower Court, on an application by an interested party, or on its own initiative. However, an application to transfer a case between Criminal Courts in the same sessions division can be made to the High Court only after an application for that transfer has been made to the Sessions Judge and rejected.

Sub-section (3) requires every application for an order under sub-section (1) to be made by motion and supported by affidavit or affirmation, unless the applicant is the State Advocate-General.

Sub-section (4) allows the High Court, when an accused person makes such an application, to direct the accused to give a bond, with or without sureties, to pay any compensation the High Court may award under sub-section (7).

Sub-section (5) requires an accused person making an application to give the Public Prosecutor written notice of it, along with a copy of the grounds. The High Court may not decide the application on its merits unless at least twenty-four hours have passed between giving the notice and the hearing.

Sub-section (6) concerns an application to transfer a case or appeal from a subordinate Court. If the High Court considers a stay necessary in the interest of justice, it may stay proceedings in that Court while the application is pending, on terms it considers fit. The stay does not affect the subordinate Court’s power to remand under section 309.

Sub-section (7) says that if an application under sub-section (1) is dismissed, the High Court may order the applicant to pay compensation to a person who opposed it, up to one thousand rupees, if the Court considers the application frivolous or vexatious and considers payment proper in the circumstances.

Sub-section (8) requires the High Court, when it orders a case transferred to itself for trial under sub-section (1), to follow the same procedure that the Court from which the case was transferred would have followed if the transfer had not occurred.

Sub-section (9) says that this section does not affect any order of Government under section 197.

Official Text

(1) Whenever it is made to appear to the High Court—

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that 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 is expedient for the ends of justice, it may order—

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the applications unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any Subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interest of Justice, order that, pending the disposal of the application the proceedings in the Subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

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) is dismissed, the High 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 proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall 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.

Sections referred to

• CrPC §177 — Ordinary place of inquiry and trial
• CrPC §178 — Place of inquiry or trial
• CrPC §179 — Offence triable where act is done or consequence ensues
• CrPC §180 — Place of trial where act is an offence by reason of relation to other offence
• CrPC §181 — Place of trial in case of certain offences
• CrPC §182 — Offences committed by letters, etc
• CrPC §183 — Offence committed on journey or voyage
• CrPC §184 — Place of trial for offences triable together
• CrPC §185 — Power to order cases to be tried in different sessions divisions
• CrPC §197 — Prosecution of Judges and public servants
• CrPC §309 — Power to postpone or adjourn proceedings

Referred to by

• CrPC §408 — Power of Sessions Judge to transfer cases and appeals
• CrPC §474 — Trials before High Courts

Related Judgments

• Rohan Shah vs . Nishigandha Shah — Bombay High Court (Mumbai Principal Seat) (2023)
• Sonika Vishnudas Kadam vs Vishnudas Haribhau Kadam & Ors — Bombay High Court (Mumbai Principal Seat) (2024)
• MD. SHAHABUDDIN vs STATE OF BIHAR & ORS — Supreme Court of India (2010)
• R. S. NAYAK vs A.R. ANTULAY — Supreme Court of India (1984)
• SECURITIES AND EXCHANGE BOARD OF INDIA vs CLASSIC CREDIT LTD — Supreme Court of India (2017)

Old <-> New Code Mapping

• BNSS §447 — Power of High Court to transfer cases and appeals