What Is BNSS Section 448?

Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 448: Power of High Court to Transfer Cases and Appeals

(1) Whenever it is made to appear to the High Court—

• (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
• (b) that some question of law of unusual difficulty is likely to arise, or
• (c) that an order under this section is required by any provision of this Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order—

• (i) that any offence be inquired into or tried by any Court not qualified under sections 197 to 205 (both inclusive), but in other respects competent to inquire into or try such offence;
• (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
• (iii) that any particular case be committed for trial to a Court of Session; or
• (iv) that any particular case or appeal be transferred to and tried before itself.

(2) 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:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) 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.

(4) When such 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).

(5) 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 applications unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for 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 interest 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:

Provided that such stay shall not affect the Subordinate Court's power of remand under section 346.

(7) 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 as it may consider proper in the circumstances of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under section 218.

Brief Detail

Section 448 of the Bharatiya Nagarik Suraksha Sanhita, 2023 grants the High Court the authority to transfer cases and appeals under specific circumstances. Key points include:

• The High Court can intervene if:
  • A fair inquiry or trial cannot be conducted in a subordinate Criminal Court.
  • A question of unusual legal difficulty is anticipated.
  • An order is necessary for justice or the convenience of parties or witnesses.
• The High Court can transfer cases:
  • To a different Criminal Court of equal or superior jurisdiction.
  • To itself for trial.
• Applications for transfer can be initiated by the lower Court, interested parties, or on the High Court's own initiative.
• Applicants must provide notice to the Public Prosecutor, and the High Court may impose terms on stays of proceedings.

Question & Answers

Q1: Under what conditions can the High Court transfer a case or appeal?

A1: The High Court may transfer a case if a fair inquiry cannot be conducted, if there are complex legal questions, or if it serves justice or the convenience of parties.

Q2: Who can initiate the transfer of a case?

A2: The transfer can be initiated by the lower Court, an interested party, or the High Court on its own initiative.

Q3: What must be included in an application for transfer?

A3: Every application must be made by motion and, if the applicant is not the Advocate-General, must be supported by affidavit.

Q4: What happens if the application for transfer is dismissed?

A4: If deemed frivolous, the High Court may order the applicant to compensate those who opposed the application.

Example

• Scenario 1: A case is moved from one subordinate Criminal Court to another due to concerns about impartiality in the original Court.
• Scenario 2: An accused applies for a transfer to the High Court because a complex legal question is expected to arise during trial.
• Scenario 3: If a transfer application is dismissed, and it is found to be frivolous, the applicant may be ordered to compensate the opposing party.

Summary

Section 448 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers the High Court to transfer cases and appeals under specific conditions aimed at ensuring justice. It outlines the process for making such applications, the requirements for supporting evidence, and the consequences of frivolous applications.