Transfer Petition is a petition filed before the court for the purpose of transferring their case from one court to another court. The party who intends to get his/her case transferred must file a transfer petition to the court and the court decides whether or not the case is transferable based on relevant grounds.
Transfer Petition in Supreme court of India is a procedure established by law, empowering the Apex Court on the conditions provided under Article 139A of the Constitution to transfer the matter on the application of either party to the suit from one High Court or subordinate Court to another High Court or subordinate Court.
The Judiciary holds a respectable position in the minds of the people seeking justice. People with utmost faith and respect come before the Judiciary to get justice that is fair and without any discrimination. In return, the Judiciary has to maintain high standards while providing justice to the people coming before it. Both sides must be heard and there shall be no obstacles while providing justice. So, in order to avoid hindrances of any kind and to ensure full satisfaction to the party seeking justice, the provision of a transfer petition has been made available.
Transfer petitions can be filed in both civil and criminal matters. Section 25 of the Civil Procedure Code, hereinafter CPC, provides for the transfer of suit from the Court of one jurisdiction to a Court of another jurisdiction. This provision gives wide powers to the Supreme Court to exercise its discretion in such matters and therefore, transfer of matters can only be granted where the Court is satisfied that such a transfer is for the expedient disposal of trials to meet the ends of justice. Also, where there are a number of suits pending in Courts of a different jurisdiction, the Court may transfer the matter to the Court where the matter was filed first. The Court has, however, on numerous occasions, held that the ultimate motive for transfer petition should be justice. Mere convenience of either party may not be a strong footing unless it is proved that such denial of such convenience shall lead to injustice.
Similarly, in criminal matters, transfer of petition can be applied for under Section 406 of the Code of Criminal Procedure, hereinafter CrPC, before the Supreme Court which guarantees similar powers to the Supreme Court as CPC, expressly limiting it to the matters relating to criminal nature. In matters where the crime extends to various jurisdictions and there arises conflict as to the commencement of the trial, the applicant may apply for transfer of the matter stating reasonable grounds of such transfer. Such grounds can be asserted only on the basis of facts and circumstances of each and every case and depend upon the satisfaction of the Bench that the stated grounds are mentioned to meet the ends of justice. There is, albeit, one difference between the provisions mentioned in civil and criminal laws. In criminal matters, if the Court finds that the application of transfer of petition has been filed with malicious intent or is vexatious in any manner, the Court may impose a fine extending up to Rupees 1,000/- upon the applicant. Also, while contemplating the transfer, the Court has to keep in mind the convenience of all the parties and witnesses thereto, so as to ensure the convenience of the society at large.
However, the application of this petition is mainly solicited in the cases of Divorce where the petitioners are usually wives, who wish to transfer their matter to their residential areas for convenient and speedy trial of the matter. Often during the pendency of divorce or separation suits, a wife has several issues while attending proceedings away from her residential area, ranging from inconvenience in travelling to managing her kids and aversion of threats during such matters. Therefore, the Court is empowered to consider all reasonable grounds while exercising its wide powers.
In order to seek transfer of the matter to another court, the petitioner has to file an application stating the reasons thereunder, which the Court evaluates. The Court cannot exercise this power on its own, but only on the application of either the Attorney General or the interested party to the suit, after which, it can approve or disapprove the petition based on its merits.
With the acquaintance of the backdrop of a general introduction, the following questions arise while discussing the transfer petition:-
- Can relief sought for the application of transfer petition be filed under Section 406, CrPC at the stage of investigation or at any stage before trial, under Section 25 of the CPC?
- Does the accused stand a choice of agency that will investigate him/her in the matter acting as a basis for transfer petition?
To answer the first question, the provision and general principles regarding the transfer petition are clear. The Supreme Court cannot be applied to seeking transfer of investigation from one State to another. Only Court matters can be transferred from one jurisdiction to another, that too on the application of the applicant.
As for the second question, adequate reference can be taken of Arnab Goswami where the Apex Court has legibly stated that the accused does not have any say in the choice of investigating agency or the manner in which the investigation shall be carried out.
With the comprehensive evaluation of the provisions and principles relating to the transfer of petition from one jurisdiction to another, it is pertinent to state that the accused in the matter of Sushant Singh Rajput are not left with many options apart from compliance with the due procedure established by law.
I hope that the content provided hereinabove has been benevolent to get a clear idea of the concept of transfer petition, its application with the scope of its extent and other necessary considerations in the present matter.
Sarthak Chaturvedi – Advocate
The author is a Lawyer at the Supreme Court of India and a Partner at a leading law firm. The views expressed here are personal.