1. PROVISIONS RELATING TO TRANSFER OF CASES UNDER CRPC?

The procedure to be mandatorily followed while pursuing a case is briefly dealt with under
the Code of Criminal Procedure, 1973. Chapter XXXI of the Code contains the provisions
related to the transfer of the criminal cases from Section 406 to 411. The main reason behind
the incorporation of transfer of cases is that of delivering justice to people and to achieve the
same, the provisions regarding the right to appeal is also provided. The overburden of
pending cases and appeals results in delayed justice thus, it creates unrest in judicial
processes. So to address this problem, certain provisions have been brought to transfer the
criminal cases from one court to another. The right of appeal in the Supreme Court is
available only in exceptional cases. As per the Code of Criminal Procedure, the original court
of criminal appeal in the High Court.

Transfer of cases and appeals by SC

Section 406 of the Code of Criminal Procedure confers the power upon the Supreme Court to
transfer cases and appeals. The Code grants the widest discretionary powers to the Supreme
Court to transfer any case or appeal lying before the High Court to any other High Court of
any state in the country in order to meet the ends of justice and fulfil the principle of natural
justice. The application requesting the transfer of any case or appeal pending before the High
Court can be moved to the Supreme Court by any of the following persons:

 Who is under the apprehension of unfair trial by the court; or

 Who is unable to find any proper justice being served to himself; or
 Attorney General or Advocate General of India.

The power granted by the Code under Section 406 to the Supreme Court is purely
discretionary in nature and the applicant is under no obligation to conclusively establish that
in case the transfer does not take place then fair justice will not take place and the applicant is
only expected to reasonably substantiate the contentions made by him under the application
he has submitted to the Supreme Court. The application under Section 406 of the Code is
made by the interested party should always be in the form of motion supported by an affidavit
or affirmation, except in the cases where the applicant is the advocate general or attorney
general of the country.
The power of the Supreme Court to transfer the cases and appeals also extends to the transfer
the cases from any subordinate court in the country where any matter is pending. However,
the court where the case is pending can ensure that the Supreme Court, while transferring the
case is taking all the measures to uphold fairness and principles of natural justice. The parties
in any suit are always guaranteed the opportunity to bring to the notice of any court with
appropriate jurisdiction that there are reasonable grounds which uphold the apprehension in
the mind of the person that certain factors inhibit his right to a fair trial.

In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the
transfer of a case on the contention that he was under the apprehension that he wouldn’t be
able to engage a counsel in the court where a case against him was already pending in the
case. However, the District Bar Association submitted an application assuring the court that a
defence counsel from among the members of the Bar Association would be made available to
the applicant. The Supreme Court held the application to be invalid dismissing the prayer for
the transfer.

In Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, the
court held that the power of transferring of cases with the Supreme Court does not extend to
transfer of any contempt proceeding which is pending before the High Court.

The power of transfer of cases and appeals is not only discretionary but is also limited as
Section 406 does not clothe the Supreme Court with the power to transfer investigation
pending before one police station to another for the only reason being the forwarding of FIR
to the court. In cases where the Supreme Court is of the opinion that the application made is
frivolous in nature and is devoid of any substantial claim then it may order the party which
came up with the application to pay compensation of not more than one thousand rupees to
the party which opposed such application?

In Kaushalya Devi v. Mool Raj, the Supreme Court held that in cases where the application
of transfer of the case is made but the Magistrate dealing with the case opposes the
application by himself filing an affidavit then the transfer of the case, without any doubt in
the complete interest of justice because in all such cases the essentials of fair and impartial
trial are already put to peril which is signified by the personal involvement of the judge
himself.
Grounds for transfer of appeal and cases

 To uphold the spirit of justice: The ultimate goal of any judicial system on the
earth is the deliverance of justice and protection of the rights of every person. The
courts are highly revered institutions of justice with people having high
expectations of justice which is sought after by the aggrieved party. Therefore, the
court is under high moral obligations for keeping the machinery of justice, equity
and good conscience alive.
 Recommendations made by the superior judicial officers: The courts while
deciding whether to transfer the cases and appeals from one court to another takes
into consideration the inquiries and findings as revealed by the reports carried on
by the senior judicial officers such as Chief judicial magistrate or any sessions
judge.
 Upon request by the trial court: Where the court before which the matter is
pending deems the case to be outside its scope of jurisdiction due to involvement
of a substantial question of law which is outside its purview. It may request the
higher judiciary to transfer the case.
 Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction
over the subject matter of the case before it. In such cases of shared or limited
juridical issues, the court trying the case has the liberty of transferring the case to
the court which possesses the conclusive jurisdiction of trying the matter. This
process ensures that complete justice has been done to the parties before the court.
 Differences between the party and the judicial officer: In circumstances where
there is already a presence of differences between the judicial officer and any of
the party the chances of an unfair and partial trial being carried out are relatively
higher. Therefore, the party apprehending such consequences of carrying on of the
trial is granted the opportunity by the judicial system to apply for transfer of the
case.
 Infringement of principles of natural justice: Where the proof of continued
contravention of the principles of natural justice by any court or judicial officer is
rendered by a party to the Supreme Court, then in order to uphold the principles of
natural justice, the court may order the transfer of the case.
The very purpose of Criminal law is the free and fair dispersal of justice which is not
influenced by any extraneous considerations. Section 407 of the Code of Criminal Procedures
enables the party to seek for transfer of case anywhere within the state while Section 406 of
the Code enables the party to seek transfer of the case anywhere in the country

Transfer of cases and appeals by HC

Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases
and appeals.

Circumstances in which HC may order the transfer of a case or appeal

The High Court has the authority to transfer the cases when it is satisfied that:

 The right to a fair and impartial trial which is guaranteed under Article 21 of the
Indian Constitution cannot be exercised by any of the party to the suit if the case is
tried by any of the courts which is subordinate to it;
 Certain questions pertaining to the present matter in the court are of unusual
difficulty;
 The transfer of the appeal or the case is made inevitable by any of the provisions
under the Code;
 The order of transfer will be in the interest of the general convenience of the
parties or witnesses involved in the suit.

Orders that the High Court can pass

The High Court on being satisfied with the presence of the above-mentioned grounds can
order any of the following:

 The offence which is inquired into or tried by any Court subordinate to it be

inquired by any other court which is inclusively under both  Section
177 and Section 185 of the Code is not qualified but is otherwise competent to
inquire into or try offences like the ones which are in question;
  Where a particular case or appeal is pending before any criminal court which is
subordinate to it to any other criminal court which is having equal or superior
jurisdiction in comparison to the High Court;
 The particular case be laid down before the court of Sessions for hearing;
 The particular case or appeal be laid down before the High Court itself.

At whose instance the powers of transfer are exercised

The High Court exercises its power of transfer of cases at the following instances:

 When the lower court submits the report for transfer of an appeal or case to the
High Court;
 Where the interested party lays before the High Court, an application requesting
the transfer of a case or appeal;
 The High Court in its own discretion can transfer a case or appeal if it is satisfied
with the fact that it would be in the best interest of the parties to the suit.

However, the High Court while transferring a case must be mindful of the fact that no
application of transfer of the case from one criminal court to another is made in the same
sessions division unless an application for the transfer of the case has been made to the
sessions court and the same has been rejected by him.

Procedure to be followed

Subsection 3 to Subsection 5 of Section 407 of the Code of Criminal Procedure lays down the
procedure which has to be followed by the person who is making the application for the
transfer of appeals and cases by him.

 Subsection 3 of Section 407 of the Code provides that the application for the
transfer of cases to the High Court by the applicant shall be made by motion which
shall be supported by an affidavit or affirmation, except in the case where the
applicant is the Advocate General of the State;
 Subsection 4 of Section 407 of the Code provides that where the application for
the transfer of a case or an appeal is made by an accused person, the High Court
 has the authority to direct him to execute a bond with or without surety for the
payment of any compensation which may be ordered to him by the court;
 Subsection 5 of Section 407 of the Code provides that every person who makes an
application for the transfer shall give to the public prosecutor in writing, a notice to
notify his intention for making such an application. The notice should be
accompanied by the grounds on which the application is made. This Section also
instructs the Courts not to make any order on the merits of the application so
submitted by the person, unless at least a time period of twenty-four hours has
elapsed between the making of such a notice and hearing of the application. 

Stay of proceeding to the subordinate court

Subsection 6 of Section 407 of the Code contains provisions relating to the stay of
proceedings which are going on in any subordinate court. The provision states that where the
application for the transfer of cases from any subordinate court is lying before the High
Court. The High Court, may if it deems fit in the interest of justice, stay the proceedings in
the subordinate court on such terms which it finds appropriate. However, if such an order is
made by the High Court, it should not have any impact on the sessions court’s power to
remand which is guaranteed to it by Section 309 of the Code.

Where the application is dismissed by the High Court

Subsection 7 of Section 407 of the Code contains provisions regarding the cases where the
High Court dismisses the application made to it under subsection 2 of Section 407 of the
Code. If the High Court finds that the application for the transfer of appeal or case was
vexatious and frivolous, it may order the applicant to pay a compensation of an amount not
exceeding one thousand rupees to any person who had opposed the application made by the
applicant. The court in such cases decided the compensation keeping in view, the facts and
circumstances of the case.

Saving

Subsection 9 of Section 407 of the Code is the saving clause and it provides that nothing
contained under Section 407 of the Code shall have any effect on the orders which are passed
by the Government of India under Section 197 of the Code which prevents the courts from
taking cognizance of any case which involves the criminal charges against any public servant
unless a previous sanction has been obtained by the court from the competent authorities.

Transfer of cases and appeals by the session’s judge

The Sessions judges are also conferred with the power to transfer cases and appeals by the
Code under Section 408.

 Subsection 1 of Section 408 provides that whenever a Sessions Judge finds it

expedient to transfer a case to meet the ends of justice. He has the authority of
transferring such cases from one criminal court to another criminal court within his
sessions division;
 Subsection 2 of Section 408 provides the instances on which the Sessions court
can transfer the cases. The Section provides that the authority to transfer the cases
with the Sessions Court can be exercised by it at the instance of the report in this
regard submitted to it by the lower court, application in this regard submitted by
the interested party or the court may exercise the power at its own discretion;
 The provisions under subsections (3), (4), (5), (6), (7) and (9) of section 407 shall
be made applicable to the Sessions Judge while making any order in regards to the
power vested on it by Subsection 1 of Section 408 in the same way as they are
made applicable to the High Court while it exercises the provisions mentioned
under subsection 1 of Section 407 of the Code.

Withdrawal of cases and appeals by Sessions Judges

Section 409 of the Code of Criminal Procedure contains provisions regarding the power of
the Sessions Court to withdraw the cases and appeals.

 Subsection 1 of Section 409 provides that the Sessions Judge, not only has the
power to withdraw any case or appeal but also has the power to recall any case or
appeal which he had earlier transferred to any Additional Sessions Judge or Chief
Judicial Magistrate who is subordinate to him;
  Subsection 2 of Section 409 provides that the power of recalling the cases by the
Sessions Judge from any Additional Sessions Judge can be exercised by him at
any time before the commencement of the trial of the case or hearing of the appeal
before the court of Additional Sessions Judge;
 Subsection 3 of Section 409 provides the course of action which can be followed
by the Sessions Court if it exercises the power vested on it by Subsection 1 and 2
of Section 409. Accordingly, after the recall of an appeal is made by the Sessions
Judge, he may either try the case or hear the appeal on his own, or again transfer
the case or the appeal to some other court in accordance with the provisions of the
Code.

In Surendra Kumar vs Vijayan, the court held that the authority of transferring such cases
from one criminal court to another criminal court within his sessions division conferred on
the Sessions Judge by Section 408(1) of the Code is an independent judicial power and is not
subject to any bar provided under Subsection 2 of Section 409.

Withdrawal of cases by Judicial Magistrates

Section 410 of the Code of Criminal Procedure contains provisions regarding the withdrawal
of cases by Judicial Magistrate. According to the Section:

 Subsection 1 of Section 410 of the Code grants the powers to the Chief Judicial
Magistrate to transfer any case from any Magistrate subordinate to him as well as
the power to recall any case which he had earlier transferred to any Magistrate
subordinate to him. When the Chief Judicial Magistrate recalls a case, he has the
authority to himself hear and try such case or he may refer the case to any other
Magistrate who is competent to hear and try the case;
 Any Judicial Magistrate has the authority to recall any case which he had
transferred to any other Magistrate under Section 192 of the Code and may inquire
into the case on his own.

Making over or withdrawal of cases by Executive Magistrates

Section 411 of the Code contains provisions about the withdrawal of cases by the Executive
Magistrate. The Section provides that any District Magistrate or Sub-divisional
Magistrate has the authority to:

 Withdraw any proceedings which started before the court to any Magistrate who is
subordinate to it for the disposal of the case;
 Withdraw or recall any case which he had earlier transferred to any Magistrate
subordinate to it and dispose of the proceedings of the case himself or refer the
same for disposal to any other competent magistrate.

Conclusion

Transfer of cases does not alter the nature of the trial or relief which is provided to the parties
to the suit. It is a mechanism ensuring the parties are rendered justice. The authority of
transferring of criminal cases from one court to another is conferred upon Supreme Court, the
High Court and the Sessions Court. However, the powers with each of the institute differ. If
the party to the suit enforces their rights guaranteed to them under the Sections and it is found
that the intention of the party is vexatious then the courts have the discretion of ordering
compensation to be paid by such person to the person who has opposed it. The sum of
compensation that the court may order differs from courts to courts. Cases can be recalled or
withdrawn by the Sessions Judge, Judicial Magistrate and Executive Magistrate. The order
made under these sections has to be recorded with the reasons for making these orders. There
should be reasonable apprehension that justice would not be met by the court under
jurisdiction then only the case can be transferred.

2. VARIOUS AUTHORITIES UNDER JJ ACT 2016 AND THEIR POWER AND

PROCEDURE

The Juvenile Justice (Care and Protection of Children) Act, 2015 (Hereinafter JJ Act, 2015) is
a new legislation which repeals the Juvenile Justice Act, 2000. One of the primary reasons for
the introduction of this act was to address the commission of heinous offences by juveniles
aged 16-18. This development comes after the infamous Mukesh & Anr. Vs. State of NCT of
Delhi and Ors. (Nirbhaya case). Traditional criminal law labelled offenders as ‘delinquent or
neglected children’ and proceeded to punish them as criminals but the new law aims at
reformative justice for the convicts. 

The primary focus of this Act is on the procedural aspect, with regard to pendency in cases,
accountability of the functionaries, etc. It has also highlighted the categories of ‘child in
conflict with law’ under Section 2(13) and ‘child in need of care and protection under Section
2(14) of the Act.

The Indian Constitution envisages a welfare state, where the children would be free from
abuse and exploitation. The Act derives its constitutional legitimacy from Article
15(3), Article 39(e) and 39(f), Article 45 and Article 47 of the Constitution of India, 1950.
These provisions empower the State to ensure the protection of basic human rights and needs
of all children. Further, the Act also aims to achieve the objectives laid down in the United
Nations Convention on the Rights of the Child, 1989, which was ratified by India in 1992.
The National Policy for Children, 2013 and the National Charter for Children, 2003 take this
view of child welfare as well. 

JUVENILE JUSTICE BOARD

The Juvenile Justice Board is an institutional body constituted under Section 4 of the JJ Act,
2015. According to the division of powers, the subject of administration of criminal justice
has been included in the State List (List II, Schedule VII) of the Indian Constitution.
Therefore, one or more than one Juvenile Justice Board(s) are established by the State
Government for each district. The Board exercises its powers and discharges functions
relating to the ‘child in conflict with law’ as has been defined under Section 2(13) of this Act.

Section 4 begins with the ‘saving clause’ which means that an overriding effect over
the Code of Criminal Procedure, 1973 has been given to this provision. It means that in spite
of the provisions mentioned in the Code, the particular clause (S.4 here) would have a full
operation. Therefore, S.4 is an enabling provision. The ‘notwithstanding clause’ has been
discussed in the case of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (AIR 1987 SC
117). 
Under Section 7 of the Act, the procedure in relation to the Board has been laid down. The
Board shall meet and carry out transactions of business as may be prescribed. It is the duty of
the Board to ensure that all procedures are child friendly and the venue is not intimidating. If
a difference of opinion arises among the Board members in the interim or final disposal stage,
then there are two options:

Either the majority opinion will prevail or if there is no majority, then the opinion of the
Principal Magistrate will prevail. In those circumstances when the Board is not sitting, a child
in conflict with law may be produced before an individual member.  Further, the Board can
pass orders even if any Board member is absent and such orders cannot be held invalid by the
only reason that any member was absent during any stage of proceedings.

Constitution

The constitution of the Board has been defined in Section 4(2) of the Act.

Composition of Bench under Juvenile Justice Act, 2015

1. Metropolitan Magistrate or Judicial Magistrate First Class (Principal Magistrate herein)

[not being Chief Metropolitan Magistrate or Chief Judicial Magistrate]

 Experience Required: 3 years.

2. Two social workers (one being a woman)

 Experience Required: Active involvement for 7 years in health, education or welfare

activities pertaining to children; OR 
 A practising professional with a degree in child psychology, psychiatry, sociology or
law. 

Powers granted to Juvenile Justice Board

The Bench shall have all the powers conferred by the Code of Criminal Procedure, 1973 on a
Metropolitan Magistrate or a Judicial Magistrate First Class.
Eligibility Criteria for Selection as Member of Juvenile Justice Board

Under Section 4(4) of the Act, the eligibility criteria for selection as a Board member has
been listed down. It has been defined in a negative manner.

The person will not be eligible if they:

 Have any past record of violation of human rights or child rights;

 Were convicted of an offence which involved the ground of moral turpitude + such
conviction has not been reversed or has not been granted pardon;
 Were removed or dismissed from the services of:

o Either the Central Government or the State Government

o An undertaking/ corporation owned or controlled by the Central Government or
the State Government

 Have ever indulged in the acts of:

o Child abuse
o Child labour
o Any other violation of human rights or immoral act

Training for Members of the Juvenile Justice Board

Under Section 4(5), the onus of sensitizing and providing training to all the Board Members
lies on the State Government. It is to be ensured that the induction training is provided within
a duration of 60 days from the date of appointment.

Term of Office for Members of the Juvenile Justice Board

Under Section 4(6) of the Act, the tenure of office for the Board members and the manner in
which they may resign has been discussed.

Termination/Disqualification of Members of the Juvenile Justice Board

Under Section 4(7) of the JJ Act, 2015 – the appointment of any Board member, except the
Principal Magistrate, may be terminated post an inquiry by the State Government if they: 
  were found guilty of misuse of power bestowed upon them under this Act; or
 failed to attend the Board proceedings consecutively for three months without
valid reasons; or
 failed in attending less than three-fourths of the sittings in a year; or
 Have become ineligible under sub-section 4 during their tenure as a member.

Placement of Persons

The Placement of Persons under the JJ Act, 2015 has been divided into two categories in
accordance with Section 5 and 6.

Category 1 Category 2

A person who ceases to be a child during an A person who was below the age of 18 years
inquiry when the offence was committed

If an inquiry has been initiated in respect of any
child under the Act and during such course of the
inquiry, if the child completes the age of 18 years,
then the inquiry can be continued and orders can
be passed as if such person was a child.
Any person who has completed 18 years of
age, and is arrested for the commission of an
offence when he/she was below 18 years,
then such person shall be treated like a child
during the process of inquiry.

If the person is not released on bail by the

Board, then they will have to be placed in a
place of safety during the inquiry process.
 
They shall be treated according to the
procedure prescribed in this Act.

Procedure followed by the Magistrate who is not empowered by the Act

The procedure to be followed in these cases has been listed down in Section 9 of the Act:

1. If any Magistrate who does not have the power to exercise the powers of the Board under
this Act, believes that the alleged offender brought before him is a child, then he shall,
without any delay:

 Record such opinion; and

 Send the child immediately to a Board having jurisdiction, along with the record of
such proceedings.

2. If any alleged offender claims before a Court other than the Juvenile Justice Board, that
when the offence was committed:

 He/she is a child;
 He/she was a child.

               OR

If the Court is itself of the opinion that the person was a child when the offence was
committed, then the Court shall take the following steps:

 Make an inquiry;
 Take evidence which is essential for determining the age of the person, but this
does not include affidavits.
 Record a finding on the matter, which states the age of the alleged offender.

PROVIDED THAT,

Such a claim can be raised before any court and can be recognized at any stage – this includes
the stage of final disposal of the case and even after the final disposal. The claim will be
determined according to the provisions of this Act and the rules made thereunder, even if the
person has ceased to be a child – on or before the date of commencement of the Act.

If the Court concludes that the person who has committed an offence was a child when the
offence was committed, then it shall send the person to the Board for passing appropriate
orders and sentence in the case. Further, if any orders or sentences have been passed by the
Court, the same will be deemed to have no effect on the person.

If it is required under this section, that a person should be kept in protective custody, during
the process of inquiry regarding the person’s claim of being a child, then the person should be
placed in a place of safety.

           

Powers

The Board constituted for any district shall have the power to deal exclusively with the
proceedings under the Act:

 In the area of jurisdiction of the Board,

 In matters relating to children in conflict with the law.

These powers may be exercised by the High Court or the Children’s Court, when proceedings
under Section 19 come before them or in appeal, revision or otherwise. It was held in the case
of Hasham Abbas Sayyad vs. Usman Abbas Sayyad (2007) 2 SCC 355 that an order passed
by a magistrate beyond his jurisdiction would be considered void ab initio.

When an alleged child in conflict with law is produced before the Board, it shall exercise its
power to hold an inquiry according to the provisions of this Act and may pass orders as it
deems fit under Section 17 and 18 of the JJ Act, 2015. The Board is also empowered to
inquire into heinous offences under Section 15 of the Act. Such preliminary assessment has
to be disposed of within a period of 3 months from the date of first production of the child
before the Board.

Functions

Sr.
Functions
No.
 Ensuring informed participation of the child & the parent or the guardian throughout the
01
process

Ensuring protection of the child’s rights throughout the process of arresting the child,
02
inquiry, aftercare and rehabilitation

Ensuring the availability of legal aid for the child through various legal services
03
institutions

Providing a qualified interpreter or translator to the child if he/she fails to understand the
04
language during the course of proceedings

Directing Probation Officer/Child Welfare Officer/Social Worker to undertake a social

05 investigation into the case. Further, directing them to submit the report within 15 days
from the date of the first production before the Board.

Adjudicating and disposing of cases pertaining to children in conflict with the law
06
according to the process mentioned in Section 14

Transferring matters to the Committee in cases where the child is alleged to be in conflict
07
with the law, but is stated to be in need of care and protection at any stage

Disposing of the matter and passing a final order which should include an individual care
08
plan for the child’s rehabilitation. This also includes follow-ups by officers or an NGO.

Conducting inquiry for declaring that a certain person is fit for taking care of the child in
09
conflict with the law

Conducting inspection every month of residential facilities for children in conflict with
10 the law and recommending various measures for improvement in the quality of services
provided

11 Ordering the police for registration of FIR if any offence is committed against any child
 in conflict with the law

Conducting a regular inspection of jails meant for adults, to check if any child is lodged
12
in such jails 

Taking immediate measures for the transfer of a child found in jails for adults, to an
13
observation home

14 Any other function as may be prescribed to the Board

Any child who is in conflict with law cannot be kept in police lock-up or jail under any
circumstances. The Supreme Court said that Juvenile Justice Boards should not be ‘silent
spectators’, in the case Re: Exploitation of Children in Orphanages in the State of Tamil
Nadu vs. Union of India and Ors.

Conclusion

In traditional law, the offenders were dealt with in a strict and harsh manner. The practice of
jailing the juveniles with hardened criminals led to further trouble and disintegration of
society. There are several factors behind the involvement of children in criminal activities,
such as poverty, unemployment, broken families, lack of parental control, etc. The new
legislation provides a response to these factors through the procedure of reformative justice.

It acknowledges the fact that children require special care and protection instead of treating
them in the same manner which led to their engagement in criminal activities. The Juvenile
Justice Board aims to deal with such children in conflict with the law in the best possible
manner so that they can be integrated into society as a contributing member at a later stage.