Order XXXIX of the Supreme Court Rules, 2013: Transfer of Criminal Proceedings
Order XXXIX regulates applications for transfer of criminal proceedings under Section 406 of the Code of Criminal Procedure, 1973 and Section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984. The corresponding general transfer power under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is found in Section 446.
Legal basis and scope
Section 406 CrPC: Authorised the Supreme Court, where expedient for the ends of justice, to transfer a particular case or appeal between High Courts, or between criminal courts subordinate to different High Courts, to a court of equal or superior jurisdiction. An application could be made by the Attorney-General of India or a party interested, ordinarily supported by affidavit or affirmation.
Section 446 BNSS: Provides the corresponding power of the Supreme Court to transfer criminal cases and appeals where expedient for the ends of justice. It also addresses who may apply, affidavit support and compensation for frivolous or vexatious applications.
Section 11, Terrorist Affected Areas (Special Courts) Act, 1984: Concerns the transfer of cases under the special statutory framework. Order XXXIX expressly identifies petitions under this provision; applicability must be considered with reference to the special enactment and the proceeding concerned.
Order XXXIX: Rules for filing and hearing transfer petitions
Rule 1 - Written petition and affidavit
Every petition for transfer under Section 406 CrPC or Section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984 must be in writing. It must state, concisely and in separate paragraphs, the facts and particulars of the case, the relief requested and the grounds supporting transfer. It must be supported by an affidavit or affirmation.
Rule 2 - Preliminary hearing and issue of notice
The petition is placed before the Court for a preliminary hearing and directions on notice. If no prima facie case for transfer is shown, or the petition is otherwise untenable, the Court shall dismiss it. If a prima facie case is made out, the Court directs notice to the respondent to show cause why transfer should not be ordered. Notice is also given to the accused where the accused is not the applicant, the respondent State and any other interested parties directed by the Court.
Rule 3 - Service of notice and affidavit deadlines
Notice must be served at least 21 days before the final hearing. Affidavits in opposition must be filed in the Registry not later than four days before the hearing. The affidavit in reply must be filed not later than 2 p.m. on the day preceding the hearing. Copies of opposition and reply affidavits must be served on the opposite parties. The Registry will not accept affidavits without an endorsement of service signed by the party or parties served.
Rule 4 - Compensation for frivolous or vexatious petitions
Where the petition is dismissed, the Court may, if it considers the application frivolous or vexatious, order the applicant to pay an appropriate sum as compensation to a person who opposed the application. This is a discretionary power, not an automatic consequence of dismissal, and must be read with the applicable statutory provisions.
Practical filing considerations
A transfer petition should clearly identify the pending criminal case or appeal, the court where it is pending, the court to which transfer is sought, the reasons transfer is necessary for the ends of justice, and the supporting documents. The petitioner should also comply with applicable Supreme Court filing, affidavit, service and electronic filing requirements. Mere convenience does not, by itself, establish a right to transfer.
Official legal sources
Consult the Supreme Court of India - Supreme Court Rules and amendments, the Supreme Court official portal, and the India Code legislative database for the governing texts and updates. The Court's published Rules and subsequent amendments should be checked before filing.