Transfer of a Case and Transfer of an Appeal Compared

⚠ Where the fairness ground does bear on an appeal

It is not that fairness can never matter on an appeal. It may, in two situations.

Where the appellate court itself is the object of the apprehension — for instance, where the appeal lies to a Sessions Judge who has previously dealt with the matter in a way that raises a reasonable apprehension. There a transfer may properly be sought.

Where the appellate court may take further evidence under section 432. The appeal then acquires a limited evidence-taking character, and the conditions in which that evidence would be taken become relevant.

Outside those, the practical grounds for transferring an appeal are the convenience of the parties, a question of law of unusual difficulty which the High Court prefers to decide itself, and the desirability of hearing connected appeals together.

📖 Abdul Nazar Madani v. State of Tamil Nadu, (2000) 6 SCC 204

Facts: A transfer of criminal cases from one State to another was sought on grounds including an apprehension about the atmosphere in which the trial would be conducted and difficulties said to arise from the location of the proceedings. The Supreme Court considered the approach to such applications.

Held: The Supreme Court held that the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conclusions drawn from the circumstances, and that vague and general allegations will not suffice. The Court held that the convenience of the parties including the witnesses is a relevant consideration, but that convenience of the parties does not mean the convenience of the petitioner alone — it means the convenience of the prosecution, other accused, the witnesses and the larger interest of society. The Court added that the plea of inconvenience must be weighed against the inconvenience that the transfer would cause to the others, and that a transfer is not to be ordered merely because a party finds it difficult or expensive to attend where the case is pending.

Ratio: The apprehension must be reasonable and drawn from circumstances, not vague or imaginary. Convenience of the parties means the convenience of everyone concerned, including the prosecution, the witnesses and society — not of the applicant alone.

📖 K. Anbazhagan v. Superintendent of Police, (2004) 3 SCC 767

Facts: A transfer of a trial from one State to another was sought on the ground that the conduct of the prosecution in the State where the case was pending gave rise to a reasonable apprehension that the trial would not be fair, the prosecuting agency being under the control of a Government headed by an accused in the case.

Held: The Supreme Court held that the power of transfer must be exercised with great caution and circumspection, but that it must be exercised where it is necessary to do so in the interests of justice. The Court held that a fair trial is the main object of criminal procedure, and that such fairness should not be hampered or threatened in any manner: fair trial entails the interests of the accused, the victim and society, so that public confidence in the fairness of a trial is not shaken. Where the circumstances — including the conduct of the prosecuting agency and its relationship to a party — give rise to a reasonable apprehension that the prosecution will not be conducted with the required detachment, the Court should not hesitate to transfer the case, and the transfer in such a case is not a reflection on the trial court but a measure to protect the process.

Ratio: A fair trial is the main object of criminal procedure and entails the interests of the accused, the victim and society. Where the circumstances give rise to a reasonable apprehension that the prosecution will not be conducted with detachment, the Court should not hesitate to transfer.

The position stated shortly

1. Sections 446 and 447 speak of transferring cases and appeals, and the machinery is the same for both — but the grounds that matter in practice differ.

2. A trial is where evidence is created; an appeal works on a record that already exists. That is why the fair trial ground dominates transfer of cases and rarely arises on appeals.

3. Only the Supreme Court can transfer across the jurisdiction of different High Courts. A Sessions Judge can transfer only within his division, and reaches an appeal only through withdrawal or recall under section 449.

4. For an appeal, the practical grounds are the convenience of the parties, a question of law of unusual difficulty, and the desirability of hearing connected matters together.

5. Fairness may still bear on an appeal where the appellate court itself is the object of the apprehension, or where it proposes to take further evidence under section 432.

6. The apprehension must be reasonable and drawn from circumstances, not vague or imaginary: Abdul Nazar Madani.

7. Convenience of the parties means the convenience of everyone concerned — the prosecution, the other accused, the witnesses and society — not of the applicant alone.

8. A fair trial entails the interests of the accused, the victim and society, and where circumstances raise a reasonable apprehension that the prosecution will not be conducted with detachment, the Court should not hesitate to transfer: K. Anbazhagan.

9. Every application to the Supreme Court is by motion supported by affidavit, and an application to the High Court requires notice to the Advocate-General or Public Prosecutor.

10. A stay may be ordered meanwhile, but it does not affect the power of remand under section 346; and a frivolous or vexatious application may attract an order of compensation.