15. ***[Omitted].
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PART A.-- Transfer Of Criminal Cases
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[1. Power of High Court- Re transfer of cases.- Under section 526 of the Code of Criminal Procedure the High Court has power to transfer any case from one Court subordinate to it to another on any of the grounds specified therein. This power for transfer extends to all classes of cases.
2. Sessions Judges power to transfer.- Under section 528 of the Code, Sessions Judges also have general power to withdraw any case from any Judicial Magistrate and to refer it for enquiry or trial to any other Judicial Magistrate competent to inquire into or try the same.
The Sessions Judge may also, at any time before the trial of a case or the hearing of an appeal has commenced before an Additional Sessions Judge, recall the case or appeal and may try the case or hear the appeal himself or may make it over to another Court for trial or hearing, as the case may be.
Sessions Judge may empower any Judicial Magistrate who has taken cognizance of any case to transfer such case for trial to any other Judicial Magistrate in his District and such Magistrate may dispose of the case accordingly.
2-A. Under section 528-A, the District Magistrate may withdraw or recall any case which he has made over to any Executive Magistrate subordinate to him and may either try the case himself or make it over for trial to any other Executive Magistrate subordinate to him.
Any District Magistrate may empower any Executive Magistrate subordinate to him who has taken cognizance of any case to transfer such case for inquiry or trial to any other Executive Magistrate in his district who is competent under the Code to try the accused and such Magistrate may dispose of the case accordingly.
It is not obligatory to stay the proceedings or adjourn the hearing for the purpose of an application under section 528. Applications for transfer should be promptly disposed of. Notice to the opposite party is not obligatory under section 528 but is advisable except when the application appears to be frivolous on the face of it and is summarily rejected. Sessions Judges should carefully enquire into the grounds on which the application is based and deal with the same, seriatim, in his order.]
3. Cases triable in more than one district. Forum to be determined with regard to public convenience.-- The necessity for transfer of a case may arise purely on grounds of jurisdiction or in the ends of justice. As regards the former, sections 179 to 183 of the Code should be consulted, when a case is to be instituted in Court. In carrying out the provisions of these sections, cases which are triable in more than one district should not be transferred unnecessarily from one district to another. A Magistrate should act under these sections solely with reference to the public convenience. Ordinarily, the proper district for the enquiry into, and trial of offences falling under those sections would be the district in which the witnesses could, with the least inconvenience, attend.
4. Procedure when a Magistrate thinks the case should be tried in another district.-- If a Magistrate is of opinion that it would be more convenient if an enquiry or trial were held in another district he should at once address the District Magistrate.
If the District Magistrate considers the transfer of the case to another district desirable, he will forward the paper to the District Magistrate of the latter district. If the District Magistrate so addressed concurs, the case should be **[referred to the High Court and] transferred to that district accordingly. If he dissents, the Magistrate should either proceed with the enquiry **[or trial], or refer the question to the High Court, *[which] will, under the provisions of section 185 of the Code of Criminal Procedure, decide in which district the enquiry or trial should be held.
5. Reasons to be given for proposal to transfer.-- When a transfer is proposed by any Magistrate his proposal should always be accompanied by a short statement of the case and of the reasons for making the proposal.
6. Common grounds on which applications for transfer are made.-- Applications for transfer of criminal cases are frequently made by accused persons on the allegation that such transfer is necessary in the interests of justice. The most common grounds on which such applications for transfer are made are (a) that the Judge or Magistrate is personally interested in the case, or (b) that he is connected with one or the other party to the case by relationship, friendship, etc., and is, therefore, likely to be partial, or (c) that he has already formed or expressed an opinion on the subject matter of the enquiry or trial, or (d) that he has conducted himself in such a manner that no fair or impartial enquiry or trial can be expected from him.
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[7. Remarks on those grounds. Cases of local bodies with which Magistrate is connected.- As regards (a), the provisions of section 556 of the Code which prohibit a Judge or Magistrate from trying certain cases without the permission of the Appellate Court should be carefully borne in mind. The section is founded on the maxim that no man can be judge of his own cause or give judgment concerning his own rights. The general rule as to disqualification is, that a person who, by reason of his interest, pecuniary or personal, is likely to have a bias in the matter of the prosecution, ought not to sit as a Judge in the case. The interest, however, must be a substantial interest giving rise to a real bias, and not merely to the possibility of a bias. The question frequently arises as to whether the connection of a Magistrate with a local body disqualifies him from trying a case to which that body is party. This must be decided on the facts of each case.]
8. Connection of the Magistrate with a party.-- In cases where the Judge or Magistrate happens to be connected with one or the other party by relationship, friendship, etc., it is advisable for him to move the proper authority at once to transfer the case to some other Court; for howsoever straightforward and impartial he may be, there is always the danger of his actions being regarded with suspicion and misinterpreted. An immediate transfer of the case would avoid the possibility of an application for transfer being made at a later stage and consequent delay in the disposal of the case.
9. Cases in which Magistrate has already expressed his opinion.- The same course would be advisable in cases in which the Judge or Magistrate has already formed and expressed a definite opinion on the material issues requiring decision, against the accused concerned.
10. Cases wherein a party apprehends that he will not have a fair trial.-- As regards the last category, the presiding officers of Courts should carefully bear in mind that it is their duty not only to be thoroughly impartial, but to conduct themselves in such a manner as not to give rise to any reasonable apprehension in the mind of an accused person that he will not have a fair and impartial enquiry or trial. In dealing with an application for transfer, the Court has to consider not merely the question whether there has been any real bias in the mind of the presiding Judge against the applicant, but also the further question whether incidents may not have happened which, though they may be susceptible of explanation and may have happened without there being any real bias in the mind of the Judge, are nevertheless such as are calculated to create in the mind of the applicant a justifiable apprehension that he would not have an impartial trial. As observed by Lush J. in Sergeant versus Dale [(1877) 2 Q.B.D. 558] "the law has regard, not so much perhaps to the motives which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away everything which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is essential to social order and security."
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[11. Adjournment on application under section 526.- In an inquiry under Chapter VIII or any trial, the fact that any party intimates to the court at any stage that he intends to make an application under this section shall not require the court to adjourn the case; but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court and, if the application is accepted by the High Court, the proceedings taken by the Court subsequent to the intimation made to it shall, at the option of the accused, be held afresh. [Section 526(8)]. If a party to an appeal intimates to the Court, before the argument begins, that he intends to make an application under section 526, the Court shall, upon such party executing, if so required, a bond without sureties of an amount not exceeding five hundred rupees; that he will make such application within a reasonable time to be fixed by the Court, postpone the appeal for such a period as will afford sufficient time for application to be made and an order to be obtained thereon. [Section 526(9)].
12. Transfer applications should be supported by affidavits. Notice to other party. High Court will not entertain applications unless Sessions Judge has first been moved.-- Applications for transfer whether to the District Magistrate or **[Sessions Judge or] the High Court, should always be supported by affidavits in support of the grounds of transfer.
13. ***[Omitted].
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[14. Succeeding Court may act on the evidence already recorded.- When a case is transferred from one Court to another, the provisions of section 350 of the Code apply, and the succeeding Court may act on the evidence recorded by its predecessor or it may re-examine the witnesses and recommence the enquiry or trial.
15. ***[Omitted].
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