Section 446 – Power of Supreme Court to Transfer Cases and Appeals

Introduction

Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the power of the Supreme Court to transfer cases and appeals.

The provision empowers the Supreme Court to transfer a particular case or appeal from one High Court to another High Court where such transfer is considered necessary in the interests of justice.

This provision is an important safeguard for ensuring a fair and impartial administration of criminal justice.

Meaning of Section 446

Section 446 provides that whenever it appears to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that a particular case be transferred.

The transfer may take place:

• from one High Court to another High Court; or
• from one Criminal Court subordinate to one High Court to another Criminal Court of equivalent or superior jurisdiction subordinate to another High Court.

In simple terms:

Supreme Court → considers transfer necessary in the interests of justice → transfers the case or appeal to another competent court.

Object and Purpose

The primary objective of Section 446 is to ensure that criminal proceedings are conducted in circumstances where the ends of justice can be effectively served.

The provision provides a remedy where continuing a case or appeal in the existing court may create concerns relating to:

• fairness;
• impartiality;
• proper administration of justice;
• local circumstances; or
• other circumstances making transfer appropriate.

The power is therefore intended to protect the integrity of judicial proceedings.

Who Can Exercise This Power?

The power under Section 446 belongs exclusively to the Supreme Court of India.

Neither a Magistrate nor a Sessions Court nor a High Court can exercise the specific power given under this provision to transfer a case from one High Court’s jurisdiction to another High Court’s jurisdiction.

The Supreme Court exercises this power within the conditions prescribed by the BNSS.

Transfer from One High Court to Another

One of the important powers under Section 446 is the power to transfer a particular case or appeal from one High Court to another High Court.

This allows the Supreme Court to move proceedings across the territorial jurisdiction of different High Courts when such transfer is considered necessary for the ends of justice.

Example

Suppose a criminal appeal is pending before the High Court of one State.

If circumstances arise showing that the case should be heard by another High Court to secure the ends of justice, the Supreme Court may order the transfer of that particular appeal to another High Court.

Transfer of Cases Between Subordinate Courts

Section 446 also permits the Supreme Court to transfer a particular case from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to a different High Court.

Thus, the power is not restricted only to proceedings pending directly before High Courts.

It can also operate in relation to specified subordinate Criminal Courts.

“Ends of Justice”

The expression “ends of justice” is central to Section 446.

The Supreme Court does not exercise the transfer power merely for convenience.

There must be circumstances making transfer appropriate for securing the proper administration of justice.

The power is therefore intended to ensure that the proceedings are:

• fair;
• impartial;
• properly conducted; and
• consistent with the interests of justice.

Application for Transfer

A person seeking transfer of a case or appeal under Section 446 may approach the Supreme Court in accordance with the procedure prescribed by law.

The Supreme Court considers the circumstances of the particular case and determines whether transfer is necessary in the interests of justice.

The provision therefore provides a mechanism for seeking intervention at the highest judicial level when transfer between different High Court jurisdictions is required.

Supreme Court’s Satisfaction

The transfer power is discretionary.

The Supreme Court must be satisfied that the circumstances justify an order of transfer for the ends of justice.

Therefore, the mere fact that a party prefers another court or finds another jurisdiction more convenient does not automatically justify transfer.

The power is exercised judicially and according to the statutory requirements.

Transfer of a “Particular Case”

Section 446 concerns the transfer of a particular case or appeal.

It is not a general power to reorganise the jurisdiction of courts.

The order relates to the specific proceeding that is the subject of the transfer application.

This ensures that the extraordinary transfer power is used for individual cases where the statutory conditions are satisfied.

Example

Suppose a criminal trial is pending before a Criminal Court subordinate to High Court A.

A party alleges circumstances that make it necessary, in the interests of justice, for the trial to be conducted in the jurisdiction of High Court B.

If the Supreme Court finds that transfer is appropriate, it may direct that the particular case be transferred to a competent Criminal Court of equal or superior jurisdiction subordinate to High Court B.

Importance of Section 446

Section 446 is important because the administration of justice sometimes requires proceedings to be moved outside the jurisdiction in which they were originally instituted.

The provision provides the Supreme Court with the necessary authority to make such transfers.

It helps:

• protect the fairness of criminal proceedings;
• address exceptional circumstances;
• maintain confidence in the judicial process;
• prevent injustice arising from local circumstances; and
• ensure that cases are heard by an appropriate court.

Section 446 and Fair Trial

The power to transfer cases can be particularly significant where circumstances may affect the fairness of a trial or appeal.

The objective is not to favour one party but to ensure that the proceeding is conducted fairly and impartially.

The transfer jurisdiction therefore supports the broader principle of a fair trial and fair administration of justice.

Transfer vs Appeal

Section 446 does not provide a mechanism for challenging the correctness of a judgment on its merits.

Appeal

An appeal challenges a judgment or order within the appellate jurisdiction provided by law.

Transfer

Transfer concerns which court should hear or continue the proceeding.

Therefore, an application under Section 446 does not itself determine whether the accused is guilty or innocent or whether an existing judgment is legally correct.

Transfer vs Revision

Revision is concerned with examining the legality, correctness, propriety or regularity of proceedings or orders.

Transfer is concerned with moving the proceeding from one court to another.

Section 446 therefore serves a fundamentally different purpose from the revisional provisions discussed in Sections 438 to 445.

Relationship with Earlier BNSS Provisions

Sections 438 to 445 primarily deal with revision.

Section 446 marks a transition to provisions dealing with the transfer of criminal cases and appeals.

The relevant sequence is:

• Section 438: Calling for records to exercise powers of revision
• Section 439: Power to order inquiry
• Section 440: Sessions Judge’s powers of revision
• Section 441: Power of Additional Sessions Judge
• Section 442: High Court’s powers of revision
• Section 443: Power of High Court to withdraw or transfer revision cases
• Section 444: Option of Court to hear parties
• Section 445: High Court’s order to be certified to lower Court
• Section 446: Power of Supreme Court to transfer cases and appeals

Supreme Court’s Transfer Power vs High Court’s Transfer Power

The BNSS provides different levels of transfer jurisdiction.

Supreme Court

Section 446 provides for transfer involving different High Court jurisdictions.

High Court

The High Court has separate statutory powers to transfer cases within the framework applicable to its jurisdiction.

The distinction is important because the Supreme Court’s jurisdiction under Section 446 is particularly significant when a transfer across High Court jurisdictions is sought.

Transfer of Appeal

Section 446 expressly covers appeals as well as cases.

Therefore, where an appeal is pending before one High Court, the Supreme Court may, where the statutory requirements are satisfied, transfer that particular appeal to another High Court.

The transfer does not amount to deciding the appeal itself.

The receiving High Court will deal with the transferred proceeding according to law.

Procedural Effect of Transfer

Once the Supreme Court orders the transfer of a case or appeal, the proceeding is to continue before the court specified in the transfer order.

The receiving court exercises the jurisdiction necessary to deal with the transferred proceeding in accordance with the Supreme Court’s order and the applicable law.

Nature of the Power

The power under Section 446 is:

• discretionary;
• supervisory;
• exceptional; and
• intended to secure the ends of justice.

It is not an ordinary procedural remedy to be invoked merely for convenience.

The Supreme Court exercises the power after considering the circumstances of the particular case.

Common Situations Where Transfer May Be Considered

Although each application depends on its facts, transfer jurisdiction may become relevant where circumstances raise serious concerns regarding:

• impartiality of proceedings;
• fair trial;
• local influence;
• circumstances affecting the proper administration of justice; or
• other exceptional considerations affecting the ends of justice.

The existence of such circumstances does not automatically result in transfer. The Supreme Court determines whether the statutory standard has been met.

Common Confusions

Can the High Court transfer a case from one High Court to another?

No.

The power under Section 446 to transfer a particular case or appeal from one High Court to another is vested in the Supreme Court.

Does Section 446 apply only to trials?

No.

It expressly covers cases and appeals.

Can a case be transferred from a subordinate court under one High Court to a subordinate court under another High Court?

Yes.

Section 446 permits such transfer where the statutory requirements are satisfied, including transfer to a Criminal Court of equal or superior jurisdiction.

Is transfer ordered merely because one party prefers another court?

No.

The Supreme Court must consider whether transfer is expedient for the ends of justice.

Does transfer decide the merits of the case?

No.

Transfer only changes the court before which the proceeding is heard.

BNSS and CrPC

Section 446 of the BNSS corresponds to Section 406 of the Code of Criminal Procedure, 1973 (CrPC).

The basic principle has been retained: the Supreme Court may direct the transfer of a particular case or appeal 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 another High Court, when such transfer is expedient for the ends of justice.

Relationship with Other BNSS Provisions

Section 446 should be read with the subsequent provisions dealing with transfer of cases:

• Section 446: Power of Supreme Court to transfer cases and appeals
• Section 447: Power of High Court to transfer cases and appeals
• Section 448: Power of Sessions Judge to transfer cases and appeals
• Section 449: Withdrawal of cases by Judicial Magistrates
• Section 450: Making over or withdrawal of cases by Executive Magistrates
• Section 451: Power to withdraw cases from Magistrates

This creates a structured system of transfer powers at different levels of the criminal judiciary.

Topic at a Glance

• Topic: Power of Supreme Court to transfer cases and appeals
• BNSS Section: Section 446
• Authority: Supreme Court
• Nature: Discretionary transfer power
• Purpose: To secure the ends of justice
• Coverage: Particular cases and appeals
• High Court transfer: From one High Court to another High Court
• Subordinate court transfer: From a Criminal Court subordinate to one High Court to a Criminal Court of equal or superior jurisdiction subordinate to another High Court
• CrPC equivalent: Section 406 CrPC

Quick Revision

• Section 446 BNSS deals with the Supreme Court’s power to transfer cases and appeals.
• The Supreme Court may transfer a particular case or appeal from one High Court to another High Court.
• It may also transfer a case between specified subordinate Criminal Courts falling under different High Courts.
• The receiving Criminal Court must have equal or superior jurisdiction as prescribed by the provision.
• The power is exercised when transfer is expedient for the ends of justice.
• Transfer does not decide the merits of the case.
• The provision is intended to protect fair and proper administration of criminal justice.
• Section 446 corresponds to Section 406 of the CrPC.

ALSO READ: Section 445 – High Court’s order to be certified to lower Court

Conclusion

Section 446 of the BNSS gives the Supreme Court an important power to transfer particular criminal cases and appeals between different High Court jurisdictions. The provision is designed to ensure that proceedings are conducted in accordance with the ends of justice and provides an important safeguard where exceptional circumstances make transfer necessary. It does not determine the merits of the underlying case; instead, it determines the appropriate forum in which the proceeding should continue.