Parties or witnesses can submit application for transfer of criminal case under Cr.PC if they feel insecure, threat or inconvenience. The principal which is laid down in section 177 of code of criminal procedure is very much clear. That every offense shall ordinarily be inquired into and tired by a court within the local limits of whose jurisdiction it was committed. But this is not a hard and fast rule. Because parties can also file an application for the transfer of criminal case from court to another court, district to another district or province to another province.
Court has the absolute authority to transfer criminal case from one district to another. Mere allegation is not a ground for the transfer of case, some concrete proof has to be given in court.
Transfer of Criminal Case
There are three modes of transfer of case under Cr.PC. Only three provision relating to transfer of case can be found in criminal law. These modes are as under:
- Transfer of Criminal Case Through High Court
- Transfer of Criminal Case By Provincial Government
- Transfer By Session Court
1. Transfer Through High Court
Section 526 of criminal procedure code explains the procedure
Grounds For transfer Of Criminal Case
There are five grounds of transfer which a party can take, if the parties suspects that a fair justice will not be served.
- That a fair or impartial inquiry or trial cannot be had in any subordinate criminal court
- That a place where offense took place is far away from the place of court and court wants to view the occurrence
- That a difficult question of law has arisen which cannot be decided by the lower court
- Convenience of the party or witness
- That it is expedient for justice
if any one of these grounds exists in any case than the high court can order that;
i. Any particular case or class of case or appeal be transferred from one subordinate court to another
ii. Any particular case be tried by itself
iii. Any accused person can be sent to another session court or to itself for trail
Transfer Of Case To The High Court
When any case is withdraw from any of its subordinate court and is tried by itself. Than the high court must adopt the same rules and procedure which the lower court has adopted.
Mods For Application Of Transfer
There are three mods to file an transfer petition in criminal cases;
- Application by lower court
- Application by any interested party
- Suo motu order
1. Application By Lower Court
When any matter arises to determinate any difficult question of law. Than lower court always consult with the high court and for this purpose they make report. High court while considering the importance of this report can transfer criminal cases from one court to another or to itself.
2. Application By Any Interested Party
Application for transfer can be filed by any party mentioning the grounds in it which are explained above. If the party show mistrust towards the presiding officer of the court or there is danger to his life or fair trail cannot be held than he can submit this application and upon this high court can transfer the case.
3. Suo Motu Order
High court has the discretion to transfer case suo motu even without having any application to transfer.
Transfer Application By Advocate General
When the applicant is an advocate general who wants to transfer the criminal case, than his application must be supported by affidavit or confirmation. Except advocate general this requirement is not mandatory for other applicants.
Application By Accused person
When the application is filed by the accused person than high court may order the accuse to furnish bonds with or without sureties in the court. If his application is rejected than the amount of bonds will be awarded to the opposing party.
Notice To The Public Prosecutor By The Accused Person
In every application of transfer filed by the accused, a prior notice shall be given in writing to the public prosecutor along with the copy of grounds on which transfer of case is sought. The court can make no order unless the 24 hours are elapsed of giving notice to the public prosecutor.
Payment Of Compensation Upon Rejection Of Application
When an application is filed under section 526 and while rejecting this application the high court thinks that this application was filled to waste the time of court or it was frivolous and vexatious. Than High Court can impose fine on applicant which will be paid to the opposing party. The maximum amount of fine cannot exceed five hundred rupees.
No Adjournment or Judgement Is pronounced
During the trail if any party intimates to the presiding officer of the court that he want to file an application to transfer the case. No adjournment will be granted to the intended applicant. And also no judgment will be pronounced unless this application has been decided by the high court.
Application of Transfer In Appeal
When after the conviction an appeal has been preferred and before arguing on this appeal the appellant intimates to the high court that he wants to file an application under this section. the court while accepting the wishes of the appellant can order him to furnish bond without sureties of rupees 500. The court fixes a time under which the intended party will file a application, otherwise his bond will be fortified.
Relevant Case laws On Transfer
2001 PCrLJ 1952, NLR 1991 Cr. 727, 1991 MLD 920, 2005 YLR 1848
PLD 2008 Kar. 260, 2009 MLD 16, 1990 PCrLJ 1097, 205, 1995 PCrLJ 1157
PLD 1996 Lah 189, 1999 PCrLJ 227, 2002 SCMR 709, PLD 2008 Kar. 260
PLD 2004 199, 2012 PCrLJ 1979, 2012 YLR 2629, 2012 PCrLJ 1314
PLD 2014 sindh 287, 2014 PCrLJ 959
Case Falling Under Anti Terrorism Act 1997
2012 YLR 309 ,2013 PCrLJ 52
Right Of Accused
2008 SCMR 1537, 2004 SCMR 261
2. Transfer of Criminal Case By Provincial Government
Section 527 of Criminal Procedure code states that, If the provincial government thinks that by transfer of case it will promote the ends of justice or tend to the general convenience of parties or witnesses. Than Government can do so by making a notification in the official gazette and by this can order that
- A particular case or appeal be transferred from one high court to another high court
- From one criminal court subordinate to high court to another criminal court equal or superior subordinate court of another high court.
Consent of Other Provincial Government
But This order of transfer cannot be made unless the government of that province gave consent. In this way case can be transferred from one high court to another high court.
3. Transfer Of Criminal Case By Session Court
Section 528 of Cr.P.C gives power to the session judge to transfer or withdraw case from his subordinate courts. Session judge while withdrawing the case from its subordinate can transfer it to another additional session judge before trail commences or appeal is argued.
4. Transfer Of Criminal Case By Magistrate
Any magistrate to whom cognizance is given under section 192 (2) can recall the case and give it to another magistrate to start inquiry.
While making such transfer the magistrate has to record the reason in writing for doing.
Format of Application For Transfer of Criminal Case
This criminal transfer petition format is reliable sample. You can also make adjustment in this draft of criminal transfer case. In this application transfer of case from one judge to another judge is requested.
IN THE COURT OF SESSIONS JUDGE, RAWALPINDI.
In the matter of;
ASU son of MSU resident of __________ District Rawalpindi.
AWA son of AAZ resident of ______ District Rawalpindi
CASE FIR NO. 356, DATED 21-12-2016 OFFENCE U/S 406,420,170 PPC P.S KAHUTA DISTRICT RAWALPINDI.
APPLICATION FOR TRANSFER OF CRIMINAL CASE FROM THE COURT OF MR. _____, LEARNED MAGISTRATE SECTION 30 KAHUTA TO ANY OTHER COURT AT KAHUTA IN THE INTEREST OF JUSTICE.
- That the criminal case on the complaint of the petitioner was registered vide FIR No. 356 dated 21-12-2016 under section 406,420,170 PPC P.S Kahuta District Rawalpindi and the challan was submitted in the court on 24-10-2016 at Judicial Magistrate Kahuta District Rawalpindi.
- That the criminal case is pending in the court of Mr. ______ Magistrate Section 30 Kahuta District Rawalpindi who is recently appointed at Kahuta but it has been observed that a close relative of accused AWA is a close friend of the said judge, and he usually came in the court and meet the judge in his chamber.
- That the complainant/ petitioner is not satisfied on the said judge and is suspicious about the activities of his friend, that he will approach to the judge and decision will be against the petitioner.
- That the accused is absent and absconder from the concern court and it is reported that he is serving at abroad and will not come in the court and his friend is trying to acquit him from the charge on the basis of relation with the concern judge.
- That the petitioner/ complainant has no confidence on the concern judge that’s why this application for transfer for criminal case is filled.
- That the complainant/ petitioner is regularly appearing in the court but the accused party is not attending the court being a source full terms.
It is therefore, respectfully prayed that the case FIR No. 356 dated 21-12-2016 pending in the court of Mr. ____, Learned Magistrate Section 30, Kahuta may kindly be transferred to any other Magistrate at Kahuata in the interest of justice.
IN THE COURT OF SESSIONS JUDGE, RAWALPINDI.
In the matter of;
State Versus Abdul Wahid
CASE FIR NO. 356, DATED 21-12-2000 OFFENCE UNDER SECTION 406,420,170 PPC P.S KAHUTA DISTRICT RAWALPINDI.
APPLICATION FOR TRANSFER CRIMINAL CASE FROM THE COURT OF MR. ___, LEARNED MAGISTRATE SECTION 30 KAHUTA TO ANY OTHER COURT AT KAHUTA IN THE INTEREST OF JUSTICE.
I, ASU son of MSU R/o _______ District Rawalpindi do hereby solemnly affirm as under;
That filed petition for transfer criminal case is true and correct to the best of my knowledge and belief.
Verified on Oath at Rawalpindi On this 27th Day of July 2016.That the above deposition is true and correct to the best of my knowledge and belief.