Transferring a criminal case: The power of the Supreme Court

Earlier this year, Bollywood actress Rhea Chakraborty had asked the Supreme Court to transfer the FIR filed against her in the Sushant Singh Rajput death case. The FIR was filed by Sushant’s father at Patna. The actress wanted the Court to transfer the criminal complaint from Patna to Mumbai, where the police are already investigating Sushant’s death.

Today, the Supreme Court has refused Rhea’s request to transfer the FIR. In its judgement, the Court said that it does not have the power to transfer an investigation. The Court only has the power to transfer criminal cases and appeals.

What is the power of the Supreme Court to transfer criminal cases?

The power of the Supreme Court to transfer a criminal case is given under Section 406 of the Code of Criminal Procedure.

The Supreme Court may transfer a particular case if it feels that this will be useful for justice. The Supreme Court has the power to transfer any criminal case from: 

• A State High Court to another State High Court 
• A lower level criminal court (junior to a State High Court), to another lower level criminal court (junior to another State High Court). The court to which the case is being transferred cannot be of a lower level than the original court.

In Maneka Sanjay Gandhi v. Rani Jethmalani, the Supreme Court said that having a fair trial is very important to justice, and is the main factor that the court considers when deciding whether to transfer a case. The court will not consider the convenience of a party, easy availability of legal services or other grievances while transferring the criminal case. Something substantial from the point of view of public justice is necessary for the court to exercise its power of transfer. 

Who can apply for transfer of a criminal case?

Only after an application has been made for the transfer of a case, the Supreme Court will decide whether to use its transferring power or not. The transfer application can be made by:    

• The Attorney-General of India or Advocate-General of a State 
• Someone who has an interest in the case. In this situation, the person has to submit the transfer application along with a written statement of the facts of the case, which can be used as legal evidence in court.

Rejecting a transfer application

The Supreme Court may dismiss the application asking for transfer of a criminal case. While denying the transfer, if the Court thinks that the transfer application was not actually genuine and not made for the right reasons, it can order the applicant to pay compensation to any person who has opposed the transfer application. The compensation paid can be up to ₹1000.

The Supreme Court judgement

In its judgement, the Supreme Court relied on the case of Ram Chander Singh Sagar v. State of Tamil Nadu. In this case, the Court had said that Section 406 does not give it the power to transfer investigations from one police station to another. A petitioner cannot approach the Supreme Court at the stage of investigation itself to directly seek an order of transfer.