Transfer of Criminal Trials: Safeguard or Delay Tactic?

The Indian legal system permits the transfer of criminal trials in exceptional circumstances, primarily to ensure that justice is not only done but also seen to be done Under the Code of Criminal Procedure, 1973 (CrPC), Section 406 empowers the Supreme Court to transfer cases or appeals from one court subordinate to a High Court to another court subordinate to a different High Court, i.e., for interstate transfers. It does not apply to transfers within the jurisdiction of the same High Court. Such intra-state transfers are governed by Sections 407 and 408, which vest the power in the High Courts and Sessions Courts, respectively, especially in cases involving apprehension of bias, threat to life, or risk of evidence tampering. This is not a matter of convenience, but a constitutional safeguard under Article 21 of the Constitution.

However, the growing use of transfer petitions, especially in politically sensitive or white-collar cases, reveals how this provision can be tactically used to delay trials. Courts have cautioned against such misuse; in Maneka Gandhi v. Rani Jethmalani, the Supreme Court emphasized that vague claims of bias are insufficient to warrant a transfer of the case.

High Courts have varied in their approach; some demand strict evidence of prejudice, others act on broader public perception concerns. This lack of consistency raises a key issue: should the threshold for transfer be clarified to prevent forum shopping and tactical delays?

As procedural misuse rises, the need for judicial discipline in granting transfers becomes urgent. Clearer standards and time-bound disposal could ensure that the provision remains a tool to protect fairness, rather than undermining it.

Procedural Application and Judicial Interpretation

In Neelima Suri vs. State of Madhya Pradesh (TP(Cr.) No. 597/2022, decided on 03.04.2024), the Supreme Court of India held that investigations cannot be transferred under Section 406 of the CrPC, which is limited to the transfer of cases and appeals. The Court clarified that while the power to transfer investigations lies outside the purview of Section 406, it may still be exercised under Article 142 of the Constitution, but only by the Supreme Court, not by High Courts, and only in exceptional circumstances where it is necessary to ensure complete justice between the parties.

However, in instances involving cross-FIRs registered in different jurisdictions, the Supreme Court may, in exceptional circumstances, invoke its extraordinary powers under Article 142 of the Constitution to consolidate such matters for effective adjudication and to avoid conflicting findings. It is essential to note that while Section 406 of the CrPC specifically addresses the transfer of trials, it does not extend to the investigative process. The Court has consistently held that an accused cannot dictate the agency or manner of investigation, as reiterated in K.V. Rajendran v. Superintendent of Police, CBCID, (2013) 12 SCC 480.

At the subordinate level, the Sessions Courts and High Courts are vested with the power to transfer cases within their jurisdictions, either Suo motu, upon the party’s application, or through references made by lower courts. High Courts may also stay in proceedings during the pendency of such applications. In contrast, the Supreme Court has jurisdiction under Section 406 to order inter-state transfers or to shift cases between courts subordinate to different High Courts, but only when it is “expedient in the interest of justice.” This remedy is sparingly exercised, typically when credible concerns arise about institutional bias, political interference, or impediments such as lack of resources, health issues, or safety threats that may undermine a fair trial.

Relevant Provisions:

• Section 406 CrPC – Power of the Supreme Court to transfer criminal cases and appeals from one High Court or subordinate court to another in a different State.
• Section 407 CrPC – Power of the High Court to transfer criminal cases and appeals between courts within the same State when fair trial concerns arise.
• Section 408 CrPC – Power of the Sessions Judge to transfer criminal cases and appeals within his sessions division, generally for reasons of convenience or fairness.

Comparative Insight: High Courts and the Transfer of Trial Applications

High Courts, under Section 407 CrPC, act as the first layer of judicial review when it comes to intra-state transfers. They are empowered to assess whether the local conditions or parties’ apprehension justify a shift in venue. Unlike the Supreme Court, which intervenes in interstate matters or cases involving larger constitutional implications, High Courts focus on factual and contextual justifications for transfer within their respective territorial jurisdictions.

1. K. Anbazhagan v. Superintendent of Police & Ors.
Transfer Petitions (Crl.) Nos. 77-78 of 2003 | Decided on: 18 November 2003

Issue: Criminal cases against the Chief Minister of Tamil Nadu and her associates were sought to be transferred out of Tamil Nadu due to a profound apprehension of bias.

Held:
A free and fair trial is a fundamental right under Article 21 of the Constitution.
When 76 prosecution witnesses were recalled and 64 resiled from their prior testimony without any objection from the Public Prosecutor, who was acting in collusion with the accused, the Court inferred that the process of justice was being subverted.
Transfer of the trial to Karnataka was allowed to safeguard the integrity of the process.

Notable Observations:
Section 311 CrPC was incorrectly invoked to recall witnesses because the counsel was busy.
The conduct of the prosecution indicated institutional compromise in Tamil Nadu.[1]

Nahar Singh Yadav & Anr. v. Union of India & Ors.
(2011) 1 SCC 307 | Decided on: 19 November 2010

Facts:
This case arose from the infamous Provident Fund (PF) scam, which involved fraudulent withdrawals from the GPF accounts of Class III and IV employees in the Ghaziabad district court. Several judicial officers, including those of higher ranks, were allegedly involved in siphoning off substantial sums from these funds.
The petitioners sought the transfer of the trial from the Ghaziabad court to any court outside the State of Uttar Pradesh, citing a grave apprehension that the accused would not receive a fair and impartial trial due to the involvement of influential members of the local judiciary and administration.

Held:
The Supreme Court granted prayer and transferred the case to the Cuttack Bench of the Orissa High Court. It emphasized that the power under Section 406 CrPC is an extraordinary power and must be exercised sparingly, only when an honest and reasonable apprehension of miscarriage of justice is clearly demonstrated.
The Court noted that when judicial officers themselves are accused, the perception of impartiality is seriously undermined, thereby affecting public confidence in the system.

Judgment Excerpts:
“The interest of justice is paramount and should override technical considerations. The faith of the common man in the justice delivery system must be preserved.” [2]

2. State of Maharashtra v. Ramdas Shrinivas Nayak & Anr.
(1982) 2 SCC 463 | Decided on: 28 July 1982

Facts:
The case involved allegations of corruption against then Chief Minister A.R. Antulay. The core question was whether the Governor of Maharashtra was bound to act on the advice of the Council of Ministers while granting sanctions to prosecute a sitting Chief Minister under the Prevention of Corruption Act.

Held:
The Supreme Court held that in such circumstances, the Governor may act independently of the Council of Ministers, especially where the Chief Minister is accused. This discretion is especially relevant when the Council of Ministers itself may be biased or implicated.

Additionally, the Court held that concessions made by counsel and recorded in judicial orders are binding and cannot be retracted by counsel or parties at a later stage.

Judgment Excerpts:
“What is recorded in the judgment of the court is conclusive and cannot be contradicted by affidavits or other material. Counsel must be careful of what they state in court…”

Relevance:
The judgment is often cited to assert the need for neutrality and independence in prosecutorial sanctions and reinforces the principle of institutional safeguards in politically sensitive trials.

Beyond Precedent: Reimagining the Supreme Court’s Role in Transferring Criminal Trials

 The power vested in the Supreme Court of India under Section 406 of the Criminal Procedure Code, 1973 now mirrored almost verbatim in Section 446 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is more than a procedural safeguard; it is a constitutional instrument rooted in Article 21 of the Constitution, ensuring that trials are conducted in a fair and impartial environment. This provision enables the Supreme Court to transfer criminal cases or appeals from one High Court to another, or from a subordinate court in one State to a subordinate court in another State, to ensure the ends of justice are served. The Court’s discretion in this regard functions at the intersection of judicial efficiency, public confidence, and the fundamental right to a fair trial.

Significantly, the transition from Section 406 CrPC to Section 446 BNSS reflects continuity rather than change. The language of the provision remains materially the same, preserving both the threshold “expedient for the ends of justice” and the procedural safeguards, such as the right to be heard and the bar against review of such orders. This deliberate replication suggests legislative intent to preserve the scope and jurisprudential foundation of the original provision, even amidst a broader overhaul of the criminal justice framework. In effect, Section 446 BNSS continues to serve as a constitutional check against local prejudice, biased investigation, or institutional failure that might otherwise compromise the fairness of a trial.

The Threshold for Transfer: High by Design

This jurisdiction is exceptional and rightly so. The Supreme Court has consistently clarified that mere inconvenience, personal discomfort, or territorial objections do not constitute sufficient grounds to justify the transfer of a criminal trial. The threshold remains deliberately high: apprehension of bias, risk to personal safety, potential witness tampering, or the appearance of unfairness are among the few grounds deemed legitimate.

In the recent decision of Kotak Mahindra Bank Ltd. v. Shri Sendhur Agro and Oil Industries, the Court reaffirmed these principles with clarity and precision.

The Case at Hand: Kotak Mahindra Bank v. Shri Sendhur Agro[3]

Background

In this 2025 ruling, a cheque dishonour case under Section 138 of the Negotiable Instruments Act was filed in Chandigarh by Kotak Mahindra Bank. The accused, Shri Sendhur Agro and Oil Industries, sought to transfer the trial to Coimbatore on the ground that all financial dealings, including account operations, loan disbursal, and EMI repayments, occurred in Coimbatore. The petitioner also cited hardship in travelling to Chandigarh and fear for personal safety.

When the High Court refused to interfere, the petitioner approached the Supreme Court under Section 406 CrPC, later re-enacted as Section 446 of the BNSS.

Supreme Court’s Analysis

The Supreme Court, while acknowledging the geographical connection of the transaction to Coimbatore, held that the Chandigarh Magistrate had valid jurisdiction under Section 142(2) of the NI Act since the cheque was presented for collection there.

More significantly, the Court emphasized that inconvenience, language barriers, and parallel civil proceedings elsewhere cannot constitute grounds for transfer. The expression “expedient for the ends of justice,” as used in Section 446 BNSS, must be interpreted considering substantial, not speculative, risks to fairness. The Court dismissed the petition, reinforcing the narrow contours within which transfer powers may be exercised.

Why This Decision Matters

The ruling reflects the Supreme Court’s commitment to maintaining judicial discipline and procedural integrity in the face of forum shopping or tactical litigation. It also underlines that transfer powers are not a convenience tool, but a remedy of last resort, invoked only when local prejudice or systemic risk could derail the trial’s integrity.

This interpretation serves a dual purpose: it protects the institutional sanctity of local courts and ensures that personal grievances or administrative challenges do not dilute the transfer jurisdiction.

How Often Are Trials Actually Transferred?

There is no central database cataloguing the outcomes of Section 406/446 petitions; however, available jurisprudence indicates that the Court exercises this power sparingly and selectively. Even in high-stakes or politically sensitive matters, the Court demands credible evidence of bias or obstruction of justice.

This cautionary approach strikes a balance between the right to a fair trial and the need to prevent the misuse of the judicial process. In the Kotak Mahindra case, for instance, despite claims of coercion and harassment, the absence of concrete evidence meant that the balance tilted in favor of continuing the trial in Chandigarh.

Scope for Reform: Strengthening the Transfer Mechanism

While the current system upholds judicial discretion, structural improvements could enhance transparency and litigant trust. Inspired by international models and the Malimath Committee’s recommendations (2003), some practical reforms may include:

• Indicative criteria to assess transfer petitions, reducing subjective variability.
• Time-bound adjudication, especially where delay may cause prejudice.
• Neutral expert evaluations for politically sensitive or multi-state matters.
• Digital case registries to track transfer applications and outcomes.

Such reforms wouldn’t constrain the Court’s powers but would enhance procedural predictability and public confidence.

Learning from Global Practice

Other common law jurisdictions offer valuable lessons:

• In the United States, Rule 21 of the Federal Rules of Criminal Procedure allows for venue transfer where prejudice or publicity risks a fair trial, supported by a structured procedural framework.
• The United Kingdom’s Crown Courts employ tools like jury anonymisation and venue guidance protocols to manage bias concerns without overusing transfer powers.

India, while unique in its federal and linguistic diversity, could adopt similarly nuanced mechanisms, tailored to our constitutional and procedural landscape[RC1] .[RC2] 

The power to transfer criminal trials is a constitutional instrument crafted to safeguard the legitimacy of judicial proceedings, not a procedural convenience for litigants. While it serves as an essential shield against localized influence, institutional partiality, or threats to personal security, its increasing invocation as a delay strategy risks undermining the timely administration of justice and diminishing public trust. The intentionally rigorous threshold for such transfers must be preserved to ensure that only substantiated and compelling requests are entertained. Simultaneously, systemic refinements such as codified criteria, time-sensitive adjudication, and procedural transparency can fortify the framework without encroaching upon judicial discretion. The task is to maintain this nuanced equilibrium: securing the right to an impartial trial while deterring tactical distortions of the process. In achieving this, the judiciary reinforces its foundational duty to dispense justice with both integrity and efficiency.

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[1] https://indiankanoon.org/doc/926636/

[2] https://indiankanoon.org/doc/668282/

[3] https://indiankanoon.org/doc/93179288/

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