A criminal trial ordinarily belongs to the court within whose jurisdiction the offence was committed. But geography sometimes becomes the enemy of justice: witnesses are terrorised in the home district, the accused dominates the local atmosphere, or a matrimonial prosecution is pursued a thousand kilometres from where the wife can possibly litigate. For movement across State lines, the Bharatiya Nagarik Suraksha Sanhita reserves the power to one court alone — the Supreme Court of India, acting under Section 446, the provision that corresponds to Section 406 of the repealed CrPC.
The statutory scheme: two provisions, two levels
The BNSS splits the transfer power by geography. Section 446 vests in the Supreme Court the power to direct, whenever it is made to appear that an order under the section is expedient for the ends of justice, that a particular case or appeal be transferred from one High Court to another High Court, or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to a different High Court. Section 447 — the successor to Section 407 CrPC — houses the High Court’s power to transfer cases within the State: from one sessions division to another, or from one subordinate court to another, on grounds the provision spells out, including that a fair and impartial inquiry or trial cannot be had, that a question of law of unusual difficulty is involved, or that transfer is otherwise expedient for the ends of justice.
| Provision | Court | Reach |
|---|---|---|
| Section 446 BNSS (406 CrPC) | Supreme Court | Across States: High Court to High Court; criminal court in one State to a court under a different High Court |
| Section 447 BNSS (407 CrPC) | High Court | Within the State: between sessions divisions and subordinate courts |
| Sections below | Sessions Judge | Within the sessions division |
What persuades the Supreme Court — and what does not
The phrase “expedient for the ends of justice” is deliberately open, but decades of transfer practice have given it working content. The Court is moved by a demonstrable threat to the fairness of the trial itself; it is unmoved by the ordinary frictions of litigating away from home.
Credible threats to the life or safety of a party or witnesses; a communally or politically surcharged atmosphere around the trial; an accused so locally powerful that witnesses cannot depose freely; a litigant who demonstrably cannot appear or defend in the distant forum; serious apprehension, on objective material, that justice will not be seen to be done.
Distance, expense or inconvenience standing alone; bald allegations of bias against the presiding judge; apprehensions unsupported by affidavit-level particulars; transfer sought as a delaying device after the trial has substantially progressed.
Matrimonial prosecutions occupy a special corner of this practice. Where a wife prosecutes or defends proceedings far from her residence, the Court weighs the relative hardship of the spouses with care — but even there, the modern availability of evidence by video-conferencing and appearance through counsel has tempered the readiness to transfer. The BNSS’s express embrace of audio-video means for appearance and evidence gives respondents a standard answer to hardship-based petitions: the witness need not travel at all. Petitioners must therefore explain why remote participation is inadequate on their facts, not merely inconvenient.
Procedure before the Supreme Court
A working checklist
For petitioners: plead specific incidents with dates, documents and FIR or complaint numbers; generalities about fear do not survive the affidavit requirement.
Address the video-conferencing answer squarely — explain why remote evidence or exemption from appearance cannot cure the prejudice alleged.
Seek interim stay at filing, and keep the trial court informed of the pendency of the petition.
For respondents: meet the petition with equally specific material — proof of the petitioner’s participation in the trial, orders showing no untoward incident, and the offer of procedural accommodations in the existing court.
Remember the cost provision: the compensation clause for frivolous petitions is invoked rarely, but its presence disciplines the pleading.
Frequently Asked Questions
Who can apply for transfer of a criminal case to another State?
Section 446 BNSS permits an application by the Attorney-General of India or by a party interested — which includes the accused, the complainant and, in appropriate cases, the victim. When the application is made by a party, it must be supported by affidavit or affirmation, so the grounds are asserted on oath and false averments carry consequences.
What must be shown for the Supreme Court to transfer a case?
The single statutory touchstone is that transfer is expedient for the ends of justice. In practice this means a credible showing that a fair trial is imperilled where the case stands — threat to the safety of a party or witnesses, a surcharged local atmosphere, or circumstances making it practically impossible for one side to defend or prosecute the case there.
Is inconvenience or distance alone a good ground?
No. Courts consistently hold that the convenience of one party, expense, or distance by itself does not justify uprooting a trial from the court of competent jurisdiction. The petitioner must show that justice itself — not comfort — is in jeopardy, though in matrimonial prosecutions the balance of hardship between the spouses is weighed with some sensitivity.
Does filing a transfer petition stay the trial?
Not automatically. The petitioner must seek interim stay of the proceedings, which the Supreme Court grants where the trial would otherwise overtake the petition. If the petition is dismissed as frivolous or vexatious, the Court may order the applicant to pay compensation to those who opposed it, a deterrent built into the provision itself.