Section 407 CrPC: Power of High Court to transfer cases and appeals

What Section 407 CrPC Says

407. Power of High Court to transfer cases and appeals

(1) Whenever it is made to appear to the High Court—

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order—

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any Subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interest of Justice, order that, pending the disposal of the application the proceedings in the Subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

Provided that such stay shall not affect the Subordinate Court’s power of remand under section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under section 197.

Source: Section 407, Code of Criminal Procedure, 1973

Section 407 CrPC in Simple Words

When Section 407 CrPC Applies

• When it is made to appear to the High Court that a subordinate Criminal Court cannot hold a fair and impartial inquiry or trial, a question of law of unusual difficulty is likely to arise, or an order under Section 407 of the Code of Criminal Procedure, 1973 is required by the Code, will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order an otherwise competent Court not qualified under Sections 177 to 185 CrPC to inquire into or try an offence, transfer a case or appeal to another subordinate Criminal Court of equal or superior jurisdiction, commit a case to a Court of Session, or transfer a case or appeal for trial before itself.
• The High Court may exercise its power under Section 407(2) CrPC on the report of the lower Court, on the application of a party interested, or on its own initiative, provided that an application to transfer a case between Criminal Courts in the same sessions division lies only if the Sessions Judge has first rejected an application for that transfer.
• Every transfer application under Section 407(3) CrPC shall be made by motion supported by affidavit or affirmation unless the applicant is the Advocate-General of the State, and under Section 407(4) CrPC the High Court may direct an accused applicant to execute a bond, with or without sureties, for paying any compensation awarded under Section 407(7) CrPC.
• On an application to transfer a case or appeal from a Subordinate Court, the High Court may under Section 407(6) CrPC stay the Subordinate Court proceedings on terms it thinks fit if satisfied that it is necessary in the interest of Justice, provided that the stay shall not affect the Subordinate Court power of remand under Section 309 CrPC.
• When the High Court dismisses a transfer application under Section 407(7) CrPC and is of opinion that it was frivolous or vexatious, it may order the applicant to pay compensation not exceeding one thousand rupees, as it may consider proper in the circumstances of the case, to any person who opposed the application.
• When the High Court transfers a case from any Court for trial before itself under Section 407(8) CrPC, it shall observe the same trial procedure that the original Court would have observed if the case had not been transferred.

Time Limits Under Section 407 CrPC

• When an accused person applies for a transfer under Section 407(5) of the Code of Criminal Procedure, 1973 and gives written notice with a copy of the grounds to the Public Prosecutor, at least twenty-four hours must elapse between the giving of that notice and the hearing before any order shall be made on the merits of the application.Act text: “unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application”

Example of Section 407 CrPC

When Section 407 CrPC Does Not Apply

• No application lies to the High Court under Section 407(2) of the Code of Criminal Procedure, 1973 to transfer a case from one Criminal Court to another Criminal Court in the same sessions division unless an application for such transfer has first been made to the Sessions Judge and rejected by him.
• A stay of Subordinate Court proceedings ordered by the High Court under Section 407(6) CrPC does not affect the power of the Subordinate Court to remand under Section 309 CrPC.
• Section 407 CrPC does not affect any order of Government made under Section 197 CrPC, as Section 407(9) CrPC provides.

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