Decoding Section 407 of Code of Criminal Procedure.
When the High Court, from the available information at its disposal, is of the opinion that;
- Unbiased inquiry or trial in the Subordinate Court is doubtful
- Question of law may arise
- Its own Order may be required, convenience of parties or witnesses or for ends of justice
In such case, it may pass Order that;
- The particular case may be tried by any other Court but not empowered under Sections 177 to 185 of Cr.P.C. otherwise it is competent to try such offence.
- The case in hand [case or appeal or class of cases or appeals] be transferred to other Criminal Court of equal or superior jurisdiction
- The particular case may be transferred to the Sessions Court, or
- It could be tried on its own.
The above arrangements could be made by the High Court on its own or on a receipt of an Application from concerned party / parties or from the lower Court.
The High Court would not entertain any fresh Application on transfer of case within the Sessions Jurisdiction unless such Application was rejected by any Sessions Judge of that Jurisdiction.
The High Court will take up an Application on transfer by motion and the exception is only to the Advocate General of the State who can support his prayer by Affidavit or Affirmation.
While such Application is received from the Accused, he shall execute a Bond with or without Sureties for payment of compensation if any which the High Court would award.
The Accused shall give notice together with a copy of the Application and grounds therein detailing merits of his case to the Public Prosecutor [PP]. The Order on the Application shall not be passed by the Court without Accused giving at least 24 hour notice to the PP.
Should the High Court deems fit, it may pass Stay Order directing the lower Court to stop execution of any proceedings on the case till disposal of Application on transfer. However such Order would not abdicate the remand powers of the lower Court given under Section 309 Cr.P.C.
If the Application was rejected by the High Court as a result of its findings that it was frivolous or vexatious, yet, just to drag the case, then it could fix a compensation and direct the Applicant to pay it to the other side. The compensation should not exceed Rs. 1000/-.
Provided the High Court finds it eligible to conduct the case on its own then it has to follow the procedures normally followed by that Court from where it was being transferred.
Otherwise, this Section does not defeat any Order of the Government under Section 197 of Cr.P.C.