Transfer Petition

What is a transfer petition?

Transfer petitions, as the name suggests, refer to petitions, which if accepted by the concerned court, will result in a transfer of that case from the court where it is being tried to some other court due to various reasons. The power to grant transfer petitions lies with the District Court, the High Court, and the Supreme Court depending on the nature of the transfer (i.e. from which court and to which court it is being transferred) and the nature of the case (civil or criminal).

Official Definition of a Transfer Petition

There are different statutory laws; the Code of Civil Procedure and the Code of Criminal Procedure which lay down the power to grant transfer petitions. Even the Indian Constitution discusses the power of the Supreme Court to grant transfer petitions.

The Code of Civil Procedure, 1908

The Code of Civil Procedure (CPC), 1908 has a lot of provisions that deal with transfer petitions stating the power of the courts to transfer cases of civil nature in different situations and the requirements to be fulfilled by the person who filed for the petition.

Section 22 of the Code of Civil Procedure

Section 22 of the CPC talks about the power of a court to transfer the case which may be instituted in more than one Court to some other court that also has jurisdiction over that case. Before the court can do so, the defendant asking for a transfer has to apply to the Court for the transfer after giving notice to the other parties. The Court where the application has been made then has the power to transfer after taking into consideration the objections made by the other parties.

Section 23 of the Code of Civil Procedure

Section 23 of the Code of Civil Procedure provides for the Court before which the application for transfer is to be made. Section 23 permits the parties to apply to the appellate court for a transfer of the petition from one court to the other if all the courts having jurisdiction over the case are subordinate to the same Appellate Court, and to the High Court if they are subordinate to different Appellate courts but within the jurisdiction of the same High Court. And in case the courts are subordinate to different High Courts, the application can be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situated.

Section 24 of the Code of Civil Procedure

Section 24 of the Code of Civil Procedure (CPC) deals with the general power of transfer and withdrawal. It grants the High Court and District Court the authority to transfer or withdraw suits, appeals, or other ongoing proceedings. The same can be initiated either upon the request of any party involved or at the discretion of the Court itself, without any prior notice. The Court can choose to transfer a case to a Court subordinate to it, within its jurisdiction and capable of handling it, or withdraw a case from that Court for either trying and concluding it, transferring it to another competent Court, or returning it to the original Court from which it was withdrawn. When a case is transferred or withdrawn, the Court that takes over can either initiate a fresh trial or continue proceedings from the point at which it was transferred or withdrawn. The section provides more clarity by stating that Additional and Assistant Judges are subordinate to the District Court and defines "proceeding" to include the execution of decrees or orders. Moreover, it allows cases to be transferred even if the initial Court lacks jurisdiction over them.

Section 25 of the Code of Criminal Procedure

Section 25 of the Civil Procedure Code (CPC) gives the Supreme Court the power to transfer suits, appeals, or other proceedings from one High Court or Civil Court in a state to another after certain conditions are met. The Supreme Court, after notifying and hearing the concerned parties, may order the transfer if it deems it expedient for the cause of justice. Applications under this section must be made through a motion supported by an affidavit. The Court after receiving the transferred case, unless directed otherwise, can either initiate a fresh trial or continue proceedings from the point of transfer. If the Supreme Court dismisses a transfer application and finds it frivolous, it may even ask the applicant to compensate the opposing party with an amount, not exceeding two thousand rupees, as it deems fit.  

Transfer Petition in case of Matrimonial Disputes

Section 22 and 25 of the CPC is used a lot in cases of matrimonial disputes where the distance between the place where the divorce petition is filed and the residence of the wife is a lot. As is clear from its wording, it is used more in cases of procedural errors. However, the grant can also be asked for in case the petitioner feels that the presiding officer of the court has been partial or unfair in passing the order. A presiding officer of a court should not be asked to explain the reason behind passing the order, barring exceptional circumstances. The grounds which a court usually considers in case of matrimonial disputes are as follows:

1. Financial crunch to the petitioner
2. Life threats to the petitioner
3. No one is in the family to accompany the petitioner
4. Long journey
5. Minor child
6. Leave is not granted by the employer (in case the Petitioner is employed) etc.
7. Apprehension of unfair trials due to various reasons

An affidavit of the petitioner and any other documents which may advise the counsel are required in the court. The court, after considering all these factors, decides whether the transfer petition should be granted on a case to case basis.

Transfer petitions in case of execution decrees

Section 39 of the CPC, rather than dealing with the transfer of the entire case, deals with the transfer of orders and decrees to some other court for execution subject to certain conditions. The Court issuing the decree may transfer it upon the application of the decree-holder or at the request of the judgment-debtor if it is satisfied that such a transfer is required. Once transferred, the Court responsible for execution has the same powers as the issuing Court to enforce the decree and it is governed by the laws in force in that State at that time. This flexibility ensures convenience for the parties involved and the practical administration of justice, especially when the location of properties differs from the original Court's jurisdiction.

Section 39 does not give the power to the court to execute any decree outside its jurisdiction but this power has been given to the court by other provisions like Order 21 Rule 3 or Order 21 Rule 48. These provisions are not diluted by section 39 of the CPC.

The Code of Criminal Procedure

Chapter XXXI of the Code of Criminal Procedure mainly deals with the transfer of criminal cases. Besides that, Section 191 of the CrPC also deals with the right of the accused to ask for a transfer before the evidence is taken into by the Magistrate which took cognizance of the offense to some other Magistrate.

Section 406 of the Code of Criminal Procedure

Section 406 of chapter XXXI deals with the power of the Supreme Court to transfer appeals and cases of criminal nature. The Supreme Court, in the interest of justice, has the authority to order the transfer of a specific case or appeal from one High Court to another High Court, or from one Criminal Court under the jurisdiction of a High Court to another Criminal Court of equal or superior jurisdiction under a different High Court. This action can only be initiated upon the application of the Attorney-General of India or any one of the interested parties. Such applications must be made through a formal motion, supported by an affidavit, unless the applicant is the Attorney-General of India or the Advocate-General of the State. The transfer of a case should only be done in extraordinary situations or compelling reasons and not mere trivial causes. If the application is found to be frivolous or vexatious, the Supreme Court may order the applicant to compensate any opposing party with a sum of money, not exceeding one thousand rupees, as deemed appropriate under the circumstances of the case.  

Apprehension of not getting a fair hearing can only be pursued as a ground when such apprehension is reasonable and not merely based on conjecture. Convenience can be a ground for transfer but it should be in terms of prosecution, other accused, witnesses and in the larger interest of society. The Court must look at the comparative inconvenience and hardships likely to be caused to the witnesses besides burden to be borne by the State Exchequer in making payment of traveling and other expenses of official and unofficial witnesses, for attending court proceedings, if cases are ordered to be transferred to transferee court.

Section 407 of the Code of Criminal Procedure

Under Section 407, if the High Court feels that a fair and impartial inquiry or trial is not possible in a subordinate Criminal Court, or when complex legal questions are likely to arise, or when required by provisions of the CPC, or when it promotes general convenience or the ends of justice, the High Court may issue orders to:

1. Inquire into or try any offense in a Court not qualified under certain sections but otherwise competent for the purpose.

2. Transfer a particular case, appeal, or class of cases from one subordinate Criminal Court to another of equal or superior jurisdiction.

3. Commit a particular case for trial to a Court of Session.

4. Transfer and try a specific case or appeal before itself.

The High Court's authority can be initiated based on reports from lower Courts, applications from interested parties, or at the High Court's own discretion. An application to transfer a case from one Criminal Court to another within the same sessions division must first be made to the Sessions Judge and rejected by them before it can be taken to the High Court.

Applications for such orders must be made through a formal motion, supported by an affidavit, unless the applicant is the Advocate-General of the State. In cases where an accused person initiates the application, the High Court may require them to provide a bond for compensation, and notice must be given to the Public Prosecutor with adequate time before the hearing.

Additionally, when a case or appeal is transferred to the High Court, it must follow the same procedure as it would have in the original Court. Lastly, the section empowers the High Court to order compensation not exceeding one thousand rupees if it deems an application for transfer frivolous.

The same authority has been vested in the Sessions judge when the transfer needs to be made from one criminal court to another criminal court in his sessions division. The powers given to the judge is similar to that given to the High Court in this context. The Sessions Judge also has the power to withdraw that case after it has been transferred. However, a Sessions Judge has to record his reasons for passing an order to transfer the case.

Constitution of India

Article 139A of the Constitution of India deals with the transfer of certain cases which involve the same or substantially the same questions of law and are pending before the Supreme Court and one or more High Courts or before two or more High Courts. This transfer can be initiated by the Supreme Court either on an application made by the Attorney-General of India or by a party to any such case or on its own motion. These cases, if they concern substantial questions of general importance, can then be disposed of by the Supreme Court itself. This helps avoid conflicting decisions on a similar question of law. Alternatively, the circumstances existing at the time of the case may not be favorable for a fair trial. In this case, after the questions which concern all these cases have been decided by the Supreme Court, the High Courts which were originally trying those cases can proceed to dispose of the case in conformity with that judgment. The Supreme Court may also transfer any case pending before any of the High Courts if it feels it is expedient to do so for the ends of justice. Article 139A is broader than Section 25 of the CPC as it also applies to criminal cases.

In the case of Harsh Ajay Singh v UOI, the Supreme Court, while declining to transfer petitions filed in various High Courts to itself, underscored the constitutional importance of Article 226 remedies available to petitioners before the High Courts. The Court, in its decision, emphasized that a pan-India issue does not necessarily mandate exclusive adjudication by the Supreme Court; instead, it recognized that different High Courts can appropriately hear the issue. This acknowledgment aligns with the constitutional framework, acknowledging the competency of High Courts to address matters that may have nationwide implications, fostering a pragmatic approach to legal proceedings and allowing for efficient distribution of cases among different tiers of the judiciary.

Supreme Court Rules, 2013

Order XXXIX

This order lays down the rules with relation to application of transfer of criminal proceedings under section 406 of the Code of Criminal Procedure, 1973 and section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984. The timeline for all the rules laid down by these Acts is specified under the Order. It states that every application for transfer must be presented in written form. The petition should succinctly outline the case's facts, the relief sought, and the grounds for the request, accompanied by an affidavit or affirmation. The initial hearing of the petition before the court will determine the issuance of notices. If, upon hearing, the court finds that there is no prima facie case for transfer or deems the petition untenable, it will dismiss the petition. However, if the court is convinced that a prima facie case exists, it will direct the issuance of notices to the respondent, granting them an opportunity to explain why the requested order should not be made. Notices must be served at least twenty-one days before the final hearing date. The court requires affidavits in opposition to be filed in the Registry four days before the hearing, with the affidavit in reply due by 2 p.m. the day before the petition's hearing. Copies of these affidavits must be served on the opposing party, and the Registry will only accept them if endorsed with the recipient's signature. In cases where the petition is dismissed and the court deems the application frivolous or vexatious, it has the authority to order the applicant to compensate those who opposed the application, with the amount determined based on the circumstances of the case.

Order XL

Applications for the transfer under Article 139A(1) of the Constitution

Each application under Article 139A(1) of the Constitution must be presented in written form, containing separate paragraphs that concisely detail the facts of the cases pending before the Supreme Court and one or more High Courts. The application should specify the names and addresses of the parties, the questions of law involved, and a statement asserting that similar questions of law are present across all cases and are of significant general importance. If the application is made by the Attorney-General, no affidavit is required but must be accompanied by a certificate from the advocate-on-record confirming the substantial importance of the questions in accordance with Article 139A(1). In the case of an application by a party to a case, an affidavit in support is necessary, along with a similar certificate.

The application undergoes a preliminary hearing before the Court, where, if the Court finds a prima facie case for granting the application, it directs the issuance of notices to the parties involved. The concerned High Courts must report the status of the cases within four weeks. Notices are served through the High Court not less than six weeks before the final hearing date. Affidavits by the parties must be filed two weeks before the hearing, and the Attorney-General's affidavit in reply is due two days before the application's hearing. After hearing the Attorney-General and the parties, if the Court is satisfied that a case for the application has been made, it instructs the High Court to transfer the case to the Supreme Court.

Upon transfer, the case is registered as a Transferred Case, and the Registrar of the High Court prepares and prints the record within six months. The cost of preparing the record is borne by the relevant party, as directed by the Court. Parties must enter an appearance in the Supreme Court within 30 days of receiving notice. Within 60 days of record dispatch, the petitioner/appellant/plaintiff files a written brief, and the respondent/defendant submits a brief within four weeks. Copies are served on the Attorney-General and the Advocate-General, and replies may be submitted within one week. The briefs must be endorsed with service and submitted to the Registry. The Court may pass orders on costs, and unless specified otherwise, other procedural orders apply to Transferred Cases under Article 139A.

Order XLI

Applications for transfer under Article 139A(2) of the Constitution and Section 25 of the Code of Civil Procedure, 1908

Every petition filed under Article 139A(2) of the Constitution or Section 25 of the Code of Civil Procedure, 1908, must be presented in writing and should provide a clear and succinct account of all relevant facts and details of the case. The petition should specify the name of the High Court or other Civil Court where the case is currently pending and articulate the grounds on which the transfer is being sought. An affidavit is required to support the petition.

The petition undergoes a preliminary hearing before the Court, where, if the Court finds that no prima facie case for transfer exists, it dismisses the petition. Conversely, if the Court is convinced that there is a prima facie case for granting the petition, it directs the issuance of notices to the parties in the concerned case to show cause why the case should not be transferred. A copy of the order is sent to the relevant High Court.

Notices must be served no less than four weeks before the scheduled final hearing date. Affidavits in opposition are to be filed in the Registry one week before the hearing, and the affidavit in reply is due two days before the hearing. Copies of these affidavits are served on the opposite party or parties, and the affidavits are only accepted in the Registry if they include an endorsement of service signed by the respective party or parties.

Subsequently, the petition is listed for final hearing before the Court. Unless otherwise specified by the rules in this Order, the provisions of other orders, including Order LI, are applicable to petitions under this Order to the extent possible.

Table of Court Fees

As per the third schedule annexed to the Rules state that the court fees for transfer petitions other than the petitions arising out of matrimonial disputes is Rs 2,500/- per matter to be transferred and the fees for transfer petitions arising out of matrimonial disputes is Rs 500/- per matter to be transferred.

Illustrative cases where transfer was allowed by the courts:

The courts have recognized several valid reasons for transferring cases, as evidenced by the following instances:

1. To prevent the occurrence of multiple proceedings or conflicting decisions.

2. In situations where there is a reasonable apprehension in the litigant's mind that justice might not be served in the current court handling the suit.

3. When the balance of convenience necessitates a transfer, with "balance of convenience" encompassing the convenience of both the plaintiff and defendant.

4. When common questions of law and fact arise between parties in two separate suits.

5. In instances where the transfer can prevent delays and unnecessary expenses.

6. When crucial questions of law are at stake or when a significant section of the public has an interest in the litigation.

There are some general rules which form the basis of all these cases of transfer of proceedings which have been reiterated by the courts recently in different cases.

In the case of Harita Sunil Parab v. State of NCT of Delhi and Others, the Supreme Court, in a recent ruling on a transfer petition for criminal cases, emphasized that the "convenience of the parties" in such petitions extends beyond the petitioner's concerns alone. The court highlighted that convenience encompasses the interests of the prosecution, other accused individuals, witnesses, and the broader societal interest. The judgment dismissed a transfer plea by a Bombay High Court advocate seeking to move FIRs from Delhi and Uttar Pradesh, citing threats and difficulties in pursuing matters in Delhi. The court underscored that the availability of witnesses at the original place is a crucial factor and stated that convenience for transfer purposes must consider the larger spectrum of stakeholders involved in the case, not just the petitioner's apprehensions.

The courts have also ruled that a solitary incident may not be a justifiable ground for transfer and that there needs to be a continuous activity to claim that the events have vitiated the trial.

Recently, the Supreme Court had also issued a circular announcing a change in the listing procedure for transfer petitions. According to the circular, after-notice transfer petitions will be listed before both single judge benches and division benches. However, the listing of fresh transfer petitions will remain exclusive to single judge benches. The circular aimed to inform members of the bar, parties involved, and all concerned about the revised listing approach for transfer petitions in the Supreme Court. The Court also in a meeting in November 2022 had decided that since most of the transfer petitions involve family matters, the hearings for the same should be expedited and decided that each bench will hear at least 10 transfer petitions daily to ensure the pending petitions are disposed of as soon as possible.

Appearances in Official Databases

National Judicial Data Grid

The National Judicial Data Grid shows the number of registered and unregistered civil and criminal transfer petitions on its website.

A snapshot of the website page

The data herein is easily downloadable in different formats. The following is the data as on 1st December 2023:

Registered civil cases: 2035 Civil Transfer Petitions

Registered criminal cases: 497 Civil Transfer Petitions

Several High Courts also have transfer petitions as a separate case type. For example, the high courts of Punjab and Haryana, Delhi, Bombay, Odisha, Jharkhand, Guwahati, Kerala, Goa, Himachal Pradesh, Andhra Pradesh, Madhya Pradesh, Allahabad, Rajasthan, Jammu and Kashmir, Meghalaya, Tripura, and Manipur have transfer applications as a separate case type.

Research that engages with transfer petitions

1. Transfer Of Cases (u/s 24 CPC & u/s 192, 408 & 410 CrPC): The article discusses various legal principles related to the consideration of transfer applications in judicial proceedings. It emphasizes that even unproved complaints may affect the benefits granted to Judicial Officers, with a focus on doubtful integrity or suspicious judicial conduct. The text provides insights into the dismissal and restoration of transfer applications, presiding officers' conduct in the presence of transfer requests, and the need for reasoned transfer orders. Additionally, it covers the powers of Chief Judicial Magistrates and Sessions Judges in withdrawing or recalling cases. The article highlights the importance of cautious and impartial comments by judicial officers on transfer applications, stressing the need for adherence to legal principles. Overall, it navigates through specific cases, legal provisions, and procedural aspects concerning the transfer of cases in the judicial context.
2. Towards An Efficient and Effective Supreme Court: Addressing issues of Backlog and Regional Disparities in Access: The research paper explores the Supreme Court's powers to transfer cases within India, emphasizing constitutional and statutory provisions such as Articles 139 and 139-A, Section 25 of the CPC, and Section 406 of the Code of Criminal Procedure. In 2014, a substantial number of transfer petitions were filed, primarily focusing on matrimonial disputes and established legal grounds. The paper outlines the broad jurisdiction of the Supreme Court and suggests a procedural improvement by assigning routine transfer petitions to a single chamber judge. This recommendation aims to expedite proceedings without straining two-judge benches, particularly for cases lacking significant legal complexity. The proposed amendment to the Supreme Court Rules aims to enhance efficiency and alleviate backlog concerning transfer petitions.
3. Transfer of Criminal Matters: Is it Ensuring Fair Trial?: The paper delves into the efficacy of transferring cases to ensure a fair trial, questioning whether such transfers alone suffice to meet the "ends of justice." By scrutinizing the outcomes of eleven cases where the Supreme Court either accepted or rejected transfer pleas, the study reveals a nuanced perspective. While acknowledging that case transfers contribute positively to justice, the paper highlights persistent trial complexities such as delays, witness intimidation, and hostility. Ultimately, it concludes that while transfers enhance the prospects of fair prosecution and justice, they do not inherently guarantee public confidence in the trial process.
4. To Transfer Or Not To Transfer: Parameters Followed By The Supreme Court In Transfer Petitions: The article discusses the surge in transfer petitions filed during the Covid-19 pandemic, particularly in the Supreme Court, with a focus on ensuring fair and impartial trials. It explores the statutory and constitutional provisions governing criminal transfer petitions, highlighting the Supreme Court's power under Section 406 of the Code of Criminal Procedure and constitutional articles such as 32, 136, and 142. The article delves into the test of transfer propounded by the Supreme Court, emphasizing the importance of ensuring a fair trial as the central criterion. It references landmark cases, including Maneka Sanjay Gandhi v. Rani Jethmalani and Nahar Singh Yadav vs. Union of India, which laid down principles for exercising the power of transfer sparingly and in exceptional situations. The piece also provides illustrative cases where transfer powers were exercised. The author critically examines the recent trend of using GPS tracking devices as a condition for bail, raising concerns about privacy, liberty, and proportionality. The article suggests that such measures may violate fundamental rights and emphasizes the need for a comprehensive bail legislation and clear guidelines for surveillance measures.

International Experiences

Various other jurisdictions have laws pertaining to the transfer of petitions from one court to the other. Most of the other countries have similar laws and have the same set of conditions which are required to be fulfilled by a person asking for the transfer of a petition. The following lists the legislations in different jurisdictions which pertain to transfer petitions.

The United Kingdom

In the United Kingdom, the law governing the transfer of proceedings is laid down by the Civil Procedure Rules. It is a set of rules which govern the conduct of civil litigation in England and Wales. Specifically, Rule 30 of the Civil Procedure Rules deals with the transfer of proceedings and allows for the transfer of cases from one court to another for various reasons, such as convenience, the interests of justice, or to ensure a fair trial. The discretion to transfer a case is generally at the discretion of the court, and the rules provide a framework for making such applications and considerations for the court in determining whether a transfer is appropriate.

The United States of America

In the United States, the rules and procedures for transferring legal proceedings can vary depending on the jurisdiction and the nature of the case. Generally, the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure deal with the law pertaining to the transfer of proceedings in the United States. Specifically, Rules 20 and 21 of the Federal Rules of Criminal Procedure and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions deal with transfer of proceedings.

Canada

In Canada, the rules and procedures for transferring proceedings depend on the jurisdiction (federal or provincial) and the specific area of law. For instance, in British Columbia, it is the Court Jurisdiction and Proceedings Transfer Act which deal with transfer of cases in that jurisdiction. Part 3 of the Act deal with a number of cases where transfer of proceedings might be required. In general, Rule 49 of the Federal Court Rules deal with the transfer of proceedings.

Australia

The Federal Court Rules 2011 deal with the transfer of proceedings in courts of Australia.

Part 27 provides a framework for the transfer of legal proceedings involving family matters, the Federal Magistrates Court, and cross-vesting of cases. The specific sections within each division define the procedures and considerations for transferring cases to and from the mentioned courts.