Introduction:
The Bharatiya Nagarik Suraksha Sanhita (BNSS) outlines provisions for the transfer of criminal cases under Sections 446 to 452. These sections empower the Supreme Court, High Courts, Sessions Judges, and Magistrates to transfer cases or appeals under specific circumstances.
Transfer by the Supreme Court (Section 446 of BNSS):
The Supreme Court, when convinced that it is necessary for the ends of justice, can direct the transfer of a particular case or appeal from one High Court to another or from a Criminal Court under one High Court to another Criminal Court. This authority is exercised upon the application of the Attorney-General of India or a party involved.
High Court's Jurisdiction (Section 447 of BNSS):
The High Court, upon certain conditions such as the impossibility of a fair trial or the existence of legal complexities, can order the transfer of cases. The High Court may act based on reports from lower courts, applications from interested parties, or its own initiative. Notably, an application for transfer from one Criminal Court to another within the same sessions division must first be made to the Sessions Judge.
Procedure and Powers (Sections 447, 448 of BNSS):
Applications for transfer must be supported by affidavit or affirmation, and accused persons may be directed to execute bonds for compensation. The High Court can stay proceedings in subordinate courts if it deems it necessary for justice. The High Court, when transferring a case to itself, follows the same procedure as the original court.
Sessions Judges also have the power to transfer cases within their sessions division under Section 448 of BNSS.
Sessions Judge's Authority (Section 449 of BNSS):
Section 449 of BNSS empowers a Sessions Judge to withdraw any case or appeal which he has made over to a Chief Judicial Magistrate subordinate to him.
Magistrates' Powers (Sections 450, 451 of BNSS):
Under Section 450 of BNSS, Chief Judicial Magistrates and Judicial Magistrates have the authority to withdraw or recall cases from subordinate magistrates and inquire into or try the cases themselves.
District Magistrates or Sub-divisional Magistrates can make over proceedings to subordinate magistrates or withdraw cases for disposal under Section 451 of BNSS.
Recording Reasons (Section 452 of BNSS):
Sessions Judges and Magistrates, when making orders under Sections 448, 449, 450, or 451, are required to record their reasons for the decision, ensuring transparency and accountability in the transfer process.
FAQs on Transfer of Cases under Bharatiya Nagarik Suraksha Sanhita (BNSS)
Q1: When can the Supreme Court order the transfer of a case or appeal under BNSS?
A1: The Supreme Court can direct the transfer of a case or appeal when it deems it necessary for the ends of justice. This authority is exercised based on the application of the Attorney-General of India or a concerned party.
Q2: What conditions empower the High Court to order the transfer of cases under BNSS?
A2: The High Court can order transfers under conditions such as the impossibility of a fair trial, legal complexities, or for the general convenience of the parties or witnesses. The High Court may act based on reports from lower courts, applications from interested parties, or its own initiative.
Q3: Is there a specific procedure for making an application for transfer?
A3: Yes, applications for transfer must be made by motion and supported by affidavit or affirmation. Accused persons may be directed to execute bonds for compensation.
Q4: Can Sessions Judges transfer cases within their sessions division?
A4: Yes, Sessions Judges have the authority to transfer cases within their sessions division under Section 448 of BNSS.
Q5: What powers do Magistrates have in relation to case transfers?
A5: Chief Judicial Magistrates and Judicial Magistrates can withdraw or recall cases from subordinate magistrates, inquire into, or try the cases themselves under Section 450 of BNSS.
District Magistrates or Sub-divisional Magistrates can also make over proceedings to subordinate magistrates or withdraw cases for disposal under Section 451 of BNSS.
Q6: Why is it essential for Sessions Judges and Magistrates to record reasons for their transfer decisions?
A6: Recording reasons ensures transparency and accountability in the transfer process, allowing for a clear understanding of the rationale behind the decision.
Q7: Can the High Court stay proceedings in subordinate courts during a transfer application?
A7: Yes, the High Court has the authority to stay proceedings in subordinate courts if it deems it necessary for the interest of justice.
Q8: How long does an interested party have to give notice for a transfer application?
A8: An accused person making such an application shall give at least twenty-four hours' notice in writing to the Public Prosecutor, along with a copy of the grounds on which it is made.
Notes on transfer of cases under BNSS (Bharatiya Nagarik Suraksha Sanhita)
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