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Transfer of Criminal Trial Guidelines

The document discusses the criteria for transferring a trial under Section 406 of the Code of Criminal Procedure, emphasizing that such transfers should not be routine but based on exceptional circumstances. Factors to consider include potential bias from the state, risks of witness tampering, and the overall convenience for all parties involved. It also highlights that apprehensions about fairness must be reasonable and not based on conjecture, with the convenience of the prosecution and witnesses being paramount in transfer decisions.

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23 views1 page

Transfer of Criminal Trial Guidelines

The document discusses the criteria for transferring a trial under Section 406 of the Code of Criminal Procedure, emphasizing that such transfers should not be routine but based on exceptional circumstances. Factors to consider include potential bias from the state, risks of witness tampering, and the overall convenience for all parties involved. It also highlights that apprehensions about fairness must be reasonable and not based on conjecture, with the convenience of the prosecution and witnesses being paramount in transfer decisions.

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© All Rights Reserved
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Download as DOCX, PDF, TXT or read online on Scribd

Nahar Singh Yadav and Ors. vs. Union of India (UOI) and Ors.

, (2011) 1 SCC 307

24. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not
power under Section 406 of the Code of Criminal Procedure should be exercised, it is manifest from a
bare reading of Sub-sections (2) and (3) of the said Section and on an analysis of the decisions of this
Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an
interested party has expressed some apprehension about the proper conduct of a trial. This power
has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to
provide credibility to the trial. Some of the broad factors which could be kept in mind while
considering an application for transfer of the trial are:

(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused,
and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;

(ii) when there is material to show that the accused may influence the prosecution witnesses or
cause physical harm to the complainant;

(iii) comparative inconvenience and hardships likely to be caused to the accused, the
complainant/the prosecution and the witnesses, besides the burden to be borne by the State
Exchequer in making payment of travelling and other expenses of the official and non-official
witnesses;

(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and
impartial trial because of the accusations made and the nature of the crime committed by the
accused; and

(v) existence of some material from which it can be inferred that the some persons are so hostile that
they are interfering or are likely to interfere either directly or indirectly with the course of justice.

Harita Sunil Parab v. State (NCT of Delhi) (2018) 6 SCC 358

8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable
and not imaginary, based upon conjectures and surmises. No universal or hard-and-fast Rule can be
prescribed for deciding a transfer petition, which will always have to be decided on the facts of each
case. Convenience of a party may be one of the relevant considerations but cannot override all other
considerations such as the availability of witnesses exclusively at the original place, making it virtually
impossible to continue with the trial at the place of transfer, and progress of which would naturally
be impeded for that reason at the transferred place of trial. The convenience of the parties does not
mean the convenience of the Petitioner alone who approaches the court on misconceived notions of
apprehension. Convenience for the purposes of transfer means the convenience of the prosecution,
other Accused, the witnesses and the larger interest of the society. The charge-sheet in FIR No. 351
of 2016 reveals that of the 40 witnesses, the Petitioner alone is from Mumbai, two are from
Ghaziabad, and one is from Noida. The charge-sheet of FIR No. 1742 of 2016 is not on record. A
reasonable presumption can be drawn that the position would be similar in the same also.

Common questions

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Transferring a trial poses logistical challenges like coordinating witness appearances, considering their locations relevant to the trial venue, and ensuring timely case progression. Financial burdens also arise from increased costs relating to travel, accommodation and legal logistics borne by the state for witnesses and officials .

The convenience of parties is significant in deciding trial transfer to ensure the efficient progression of proceedings. It includes evaluating the ease for prosecution, accused, and witnesses, not just the petitioner, balancing logistical challenges like witness availability at the original trial location, and societal interests .

The perception of a fair trial influences the decision to transfer when there is a reasonable apprehension of bias or unfair treatment, not based on conjectures or surmises. The apprehension should be reasonable, demanding a transfer only in exceptional situations where essential for credibility .

The rationale for cautious use of transfer power is to prevent misuse based on trivial or unfounded apprehensions. Transfers are meant for exceptional cases where truly necessary to preserve trial integrity, thus preventing judicial resources wastage and ensuring justice delivery efficiency .

If there's a credible threat that the accused could influence prosecution witnesses - either through intimidation or bribing - it could necessitate a trial's transfer to protect the interests of justice and ensure unbiased testimonies without undue pressure .

Evaluating societal context is critical to discerning underlying prejudices or biases that might impair impartial judicial proceedings. It helps in assessing potential influences from community sentiments, ensuring that the judicial process remains neutral and fair despite external societal pressures .

The primary factors considered when deciding on the transfer of a trial under Section 406 include: (i) whether the State machinery or prosecution is collaborating with the accused, risking miscarriage of justice; (ii) if the accused might influence witnesses or harm the complainant; (iii) the comparative inconvenience and hardships for the accused, complainant/prosecution, and witnesses, including state costs for witnesses' expenses; (iv) a communally charged atmosphere affecting fair trial potential; and (v) hostile parties potentially interfering with justice .

Perceived cooperation between prosecution and accused might lead to transfer if it endangers the fairness of proceedings, such as through indications of miscarriage of justice due to prosecution's lackadaisical approach, requiring stringent judicial intervention to maintain trial credibility .

Courts ensure that apprehensions about trial fairness are not based on assumptions by requiring concrete evidence justifying concerns. Apprehensions must be grounded in specific, credible indications of bias or interference, rather than mere suspicions or erroneous perceptions .

A communally surcharged atmosphere can impact trial impartiality by infusing bias and affecting public and participant attitudes. It creates unreasonable hostilities or threats, preventing fair evaluation of evidence and imparting undue pressure on judicial proceedings .

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