Code Of Criminal Procedure: Jurisdiction and transfer of cases

JURISDICTION AND TRANSFER

In every organized functioning system proper demarcation of the area of work and distribution of power is important to avoid unwanted chaos. Jurisdiction can be said as the limit over which a particular authority mat exercise its power for performing its duties.  It elucidates the authority of each court, extent their powers and competency to take cognizance of a case. The Indian Constitution had specified about different kinds of jurisdiction, that different authorities may exercise. The local jurisdiction of a court as to the hearing and general principles regarding proceedings are discussed. The transfer of a case may be done for various purposes descriptively such as for speedy disposal, competency of a court, to favour the genuine interest of the parties, to protect the rightful rendering of justice etc.. In this code, the chapters XIII (SECTIONS 177 – 189) and XXXI (SECTIONS) deals with the jurisdiction of the criminal courts in inquiries and trials and transfer of criminal cases respectively.

JURISDICTION OF CRIMINAL COURTS PERTAINING TO INQUIRIES AND TRIALS

PLACES OF INQUIRY AND TRIAL

In general, a particular offence is inquired or tried in a court within whose local jurisdiction, the offence particularly or partially take place.

  • All offences are inquired and tried by a court within whose local jurisdiction it was committed (S. 177)
  • Where the offences had been committed in more than one place,
  • When the place of commission of the offence is not in particular because of commission in several places.
  • Where an offence constitutes of several acts, committed in different local areas.
  • Where an offence is partly committed in one local area and rest in another area (S. 178).
  • An act, which is known as an offence, due to the reasons made by or consequences ensued, it is inquired or tried by a court within whose local jurisdiction such reason or consequence ensued was made out (S. 179).
  • When an act is an offence by reason of any other act which is or which would be an offence, if the doer capable of committing an offence, then the initially mentioned offence is inquired or tried by the court within whose local jurisdiction committed (S. 180).
  • Section 181 specifies the conditions in case of certain offences. The trial can be commenced where the accused is found, besides the place where the offence was committed and speaks about the offences, when not committed in a single place. The place of inquiry is by the court within whose local jurisdiction such event happened or the accused resided with the victim. The following offences are enlisted,
  • Thug or murder committed while performing the act of thug, dacoity or dacoity with murder.
  • Kidnapping or abduction of a person.
  • Theft, extortion or robbery.
  • Criminal misappropriation or criminal breach of trust.
  • Any offence of cheating by means of letter or by telecommunication messages or by dishonestly inducing delivery of property may be inquired or tried by a court within whose local jurisdiction such letters or messages or property are received by the accused person (S.182).
  • Offence committed on journey or voyage:  When an offence is committed, whilst the

person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage (S. 183). The section applies for the trial of offences committed in India only[1].

  • Section 184 deals with the place of trial for offences triable together: Where
  • the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221, or
  • the offence or offences committed by several persons are such that they may be charged with, and tried

together by virtue of the provisions of section 223, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.

  • Section 185 deals with the power of the state government to order cases to be tried in different Sessions division. The State Government may direct any cases or class of cases committed in any district to be tried in any sessions division and such an order should not be repugnant to the previous direction of the high court or supreme court under the constitution or this code. But the High Court or the Supreme Court are, free to give any direction overriding the effect of the order passed by the State Government under Section 185.
  • Section 186 deals with the selection of appropriate court for inquiry or trial when the case involves jurisdiction under more than one court. Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided

  (a) if the Courts are subordinate to the same High Court, by that High Court;

  (b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in respect of that offence shall be

discontinued. The section does not provide that the court which was the first to take cognizance of the offence, would be the one which ought to inquire into applies only when both the cases are common and they arise out of the same occurrence or same transaction, and the parties are

the same, in which case, having regard to the circumstances, the High Court within whose local limits of appellate criminal jurisdiction the proceedings were first commenced.

OFFENCES COMMITTED OUTSIDE THE JURISDICTION OF INDIA

SECTION 187: POWER TO ISSUE SUMMONS OR WARRANT FOR OFFENCE COMMITTED BEYOND LOCAL JURISDICTION.

  • The authority may be a Magistrate of 1st class.
  • The offence should have been committed outside his local jurisdiction but triable in India.
  • The jurisdiction should be conferred by any law for the time being in force in India.
  • In such a case, such magistrate can compel the person to appear before him, send such person to another magistrate with competent jurisdiction to inquire, into or try such offence.
  • If such an offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction (Sub – section (1)).
  • When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court (Sub – section (2)).

SECTION 188 – OFFENCE COMMITTED OUTSIDE INDIA

 When an offence is committed outside India

                 (a) by a citizen of India, whether on the high seas or elsewhere; or

                 (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

In Samaruddeen v. Director of Enforcement (Samruddin)[2], wherein it held that the court had no jurisdiction to direct investigation or trial of a crime committed by a person in a foreign country without the sanction of the Central Government.

When an offence is committed by a person outside India as described in Section 188, he can be dealt with (in respect of such offence) at any place at which he is found. In such a situation it does not matter whether such person comes voluntarily or in answer to summons or under illegal arrest. It is enough that the court should find him present when it comes to take up the case.

TRANSFER OF CRIMINAL CASES

SI.NO.POWER OF TRANSFERRING CASES & APPEALSPOWER OF WITHDRAWING CASES & APPEALS
1Supreme Court (S. 406)Sessions Judge (S. 409)
2High Court (S. 407)Judicial Magistrates (S. 410)
3Sessions Judge (S. 408)Executive Magistrates (S. 411)

TRANSFER OF CASES & APPEALS

SUPREME COURT

  • The Supreme court may act (pass an order for transfer) only on the application of the parties themselves or of the attorney – general of India made by motion.
  • The transfer of cases or appeals are made between,
  • one high court to another high court i.e. between the states, and
  • a criminal court subordinate to one high court to another such court subordinate to another high court (Sub – section (1)).
  • The applicant’s application shall be supported by an affidavit or affirmation by either attorney general of India and advocate general of state.
  • The attestation procedure is exempted for attorney general of India and advocate general of state, when they themselves are the applicant’s (Sub – section (2)).
  • Where any application for the exercise of the powers conferred by this section is dismissed, the supreme 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 appropriate in the circumstances of the case (Sub – section (3)).

HIGH COURT

  1. Whenever it is made to appear to the high court
  2. That a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto, or
  3. That some question of law of unusual difficulty is likely to arise or
  4. 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.
  5. 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.
  6. 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.
  7. When such an 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).
  8. 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 twenty fours have elapsed between the giving of such notice and the learning of the application.
  9. Where the application is for the 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 interests 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.
  10. 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.
  11. When the High Court orders under sub – section (1) that a case be transferred from any court for trial before itself, it shall observe if the case had not been so transferred.
  12. Nothing in this section shall be deemed to affect any order of government under section 197.

SESSIONS JUDGE

  • A Sessions Judge may act to transfer a case,
  • On reports of the lower court or
  • On behalf of the party interested or 
  • On his own initiative (sub – section (2)).
  • Sessions Judge may order to transfer a particular case from one criminal court to another criminal court in his Sessions Division (sub – section (1)).
  • The provisions of sub – sections (3), (4), (5), (6), (7) & (9) of section 407 shall apply in relation to an application to the sessions judge for an order under sub – section (1) of section 407, except that sub – section (7) of that section shall so apply as if for words one thousand rupees occurring therein, the words two hundred and fifty rupees were substituted.
  • It has been held in a catena of decisions of various High Courts that the legislature has provided broader powers to Sessions Judge by Section 408(1) and these powers should be judicially and cautiously exercised[3].

WITHDRAWAL OF CASES & APPEALS

SESSIONS JUDGE

  • A Sessions Judge may withdraw or recall any case or appeal,
  • Which he made over to another subordinate court or
  • Trial commencing before the Additional Sessions Judge or Chief Judicial Magistrate subordinate to him (sub – section (1)).
  • At any time before the trial of the case or hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge (sub – section (2)).
  • Section 409 does not relate to cases which are originally filed in the court of Chief Judicial Magistrate or Sub-divisional Judicial Magistrate.

JUDICIAL MAGISTRATES

EXECUTIVE MAGISTRATES

  • Any District Magistrate or Sub – divisional Magistrate may
  • Make over, for disposal, any proceeding which has been started before him, to any magistrate subordinate to him.
  • Withdraw any case from, or recall any case which he has made over to, any magistrate subordinate to him, and dispose of such proceeding himself or refer it for disposal to any other magistrate.

If the Sub-Divisional Magistrate refuses to transfer a particular case, the District Magistrate can transfer the case, and in such situation the Sub – divisional Magistrate did not have the power to nullify the transfer by resorting to retransferring of the case[5].

REASONS TO BE RECORDED (SECTION 412)

A Sessions Judge or Magistrate making an order u/ss. 408, 409, 410 or 411 shall record his reasons for making it.

KEY POINTS

  • Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
  • If any offence is committed outside India the person may be dealt with in respect of such offence as if it had been committed at any place within India at which the person may be found.
  • The transfer of a case or an appeal are made by competent courts and the directions are given to courts subordinate to the respective courts.

[1] Public Prosecutor v. Pedimonu Peary. (1929) 50 Cri Lj 245: ILR (1929) 52 Mad 61.

[2] (1994) 1 KLT 464.

[3] Bharamammbika v. State of Mysore

[4] Food Inspector v. K.P. Alavikutty, 1987 Cri LJ 12.98 (Ker).

[5] Mohd. Akbar v. Emperor, {1925) 26 Cri LJ 538, 539: AIR 1925.

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