Sections 406 and 407 CrPC: Power to Transfer Criminal Cases and Appeals
Sections 406 and 407 of the Code of Criminal Procedure, 1973 dealt with transfer of criminal cases and appeals by the Supreme Court and the High Court. This article explains the statutory powers, grounds, procedure and safeguards applicable under the CrPC before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force.
Section 406 CrPC - Power of Supreme Court to Transfer Cases and Appeals
Meaning: Section 406 empowered the Supreme Court to transfer a particular criminal case or appeal across High Court jurisdictions when such transfer was expedient for the ends of justice.
Section 406(1): The Supreme Court could transfer a case or appeal from one High Court to another High Court, or from a Criminal Court subordinate to one High Court to a Criminal Court of equal or superior jurisdiction subordinate to another High Court.
Section 406(2): The power could be invoked on the application of the Attorney-General of India or a party interested. The application had to be made by motion and, except where the applicant was the Attorney-General of India or the Advocate-General of a State, supported by affidavit or affirmation.
Section 406(3): If an application was dismissed as frivolous or vexatious, the Supreme Court could award compensation to a person who opposed it, subject to the statutory limit then prescribed by the CrPC.
Section 407 CrPC - Power of High Court to Transfer Cases and Appeals
Meaning: Section 407 empowered a High Court to transfer criminal cases and appeals within the jurisdiction of courts subordinate to that High Court, or to transfer a matter to itself, where one or more statutory grounds existed.
Grounds under Section 407(1)
A transfer could be ordered where a fair and impartial inquiry or trial could not be had in a subordinate Criminal Court; a question of law of unusual difficulty was likely to arise; a transfer was required by another provision of the CrPC; the transfer would serve the general convenience of parties or witnesses; or it was expedient for the ends of justice.
The High Court could direct trial before another otherwise competent court, transfer a particular case or appeal or a class of cases or appeals to a court of equal or superior jurisdiction, commit a particular case to the Court of Session, or transfer a case or appeal to itself for trial.
How the High Court could act
Under Section 407(2), the High Court could act on a report of the lower court, on an application by a party interested, or on its own initiative. Where transfer was sought from one Criminal Court to another Criminal Court in the same sessions division, an application ordinarily had first to be made to the Sessions Judge and rejected.
Application, notice and stay
Under Section 407(3), an application was made by motion and, except where made by the Advocate-General of the State, supported by affidavit or affirmation. If an accused made the application, the High Court could require a bond under Section 407(4). Section 407(5) required written notice to the Public Prosecutor together with a copy of the grounds, and at least twenty-four hours had to elapse before the application was heard on merits.
Under Section 407(6), where transfer of a case or appeal from a subordinate court was sought, the High Court could stay the subordinate proceedings if necessary in the interests of justice, on terms it considered fit. Such stay did not affect the subordinate court's power of remand under Section 309 CrPC.
Dismissal, trial by High Court and Government orders
Section 407(7) permitted compensation where a transfer application was dismissed as frivolous or vexatious, subject to the statutory limit. Under Section 407(8), if the High Court transferred a case to itself for trial, it had to follow the procedure that the original court would have followed. Section 407(9) preserved Government orders under Section 197 CrPC.
Difference Between Sections 406 and 407 CrPC
Section 406 concerned transfer by the Supreme Court, including transfer from one High Court to another or across the territorial control of different High Courts. Section 407 concerned transfer by a High Court within its subordinate criminal court structure and also allowed the High Court, in appropriate cases, to transfer a matter to itself.
Important Points for a Transfer Application
A transfer request was not merely a request for a different forum. The statutory focus was on the ends of justice, a fair and impartial inquiry or trial, unusual difficulty of law, convenience of parties or witnesses, and the other grounds expressly stated in Section 407. The procedural requirements concerning motion, affidavit, notice and prior approach to the Sessions Judge in specified cases formed part of the statutory scheme.
Position After the Bharatiya Nagarik Suraksha Sanhita, 2023
For current proceedings governed by the BNSS, the corresponding transfer provisions are Section 447 (power of the Supreme Court to transfer cases and appeals) and Section 448 (power of the High Court to transfer cases and appeals). For proceedings that were already pending immediately before the BNSS commenced, Section 532(2)(a) contains a savings rule under which the pending appeal, application, trial, inquiry or investigation continues under the CrPC as if the BNSS had not come into force.
Editorial scope: This page primarily explains Sections 406 and 407 of the CrPC as applicable before implementation of the BNSS, while identifying the present corresponding provisions so readers do not mistake the historical CrPC text for the law governing every new proceeding.